Collett v Loane

[1966] HCA 71

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Taylor, Menzies and Windeyer JJ.

COLLETT v. LOANE

(1966) 117 CLR 94

28 November 1966

Defence (Cth)—Prerogative Writs

Defence (Cth)—National Service—Conscientious objector—Exemption from duties of a combatant nature—Second application for exemption—Whether mandamus lies—National Service Act 1951-1965 (Cth), ss. 25, 29-29D—Judiciary Act 1903-1965 (Cth), s. 33 (1) (a). Prerogative Writs—Mandamus—Performance of duty by court vested with federal jurisdiction—Circumstances in &hich mandamus will issue.

Decisions

November 28.
The following written judgments were delivered:-
BARWICK C.J. Noel Edgar Collett (the applicant) moves upon notice for a writ directed to Edward Noel Loane, Stipendiary Magistrate of Nambour, Queensland (the magistrate) commanding him to exercise the federal jurisdiction vested in him by s. 57A of the National Service Act 1951-1965 (Cth) (the Act) and hear an application made by the applicant on 4th April 1966 to be registered as a person who is liable to be called up for service under the Act but who is not required to engage in duties of a combatant nature on the ground that he holds a conscientious belief that does not allow him to engage in military duties of a combatant nature but which allows him to engage in military duties of a non-combatant nature: s. 29A (2). (at p96)

2. The magistrate declined jurisdiction because an earlier application by the applicant for a like order had been dismissed and, on appeal, the order of dismissal had been confirmed by a court of review: see s. 29C. (at p96)

3. The applicant is a registered person liable to render service as required under the Act. He does not claim to be exempt under s. 29A (1). Following upon the dismissal of his earlier application to be held to be a person to whom s. 29A (2) applies, successive notices calling him up for service with the military forces of the Commonwealth were served upon him but in each case revoked by the Secretary to the Department of Labour and National Service (s. 26 (3)) to allow the applicant to take proceedings, including the present proceedings in this Court. Consequently, the applicant has not yet commenced to render service under the Act. (at p96)

4. From the affidavits which the applicant has filed in support of his motion before this Court, it is clear to my mind that the conscientious beliefs which the applicant claims to hold and upon which he desires to found the application which the magistrate has declined to hear are the same conscientious beliefs which he claimed to have held at the time of his first application upon which, as I have said, he was unsuccessful both initially and on appeal. But, as also appears from these affidavits, the applicant claims now to understand the basis of those beliefs better than he did formerly and considers himself now to be able to explain them more convincingly than he did upon the hearing of his first application. It is quite clear from the affidavits, in my opinion, that the applicant does not found his second application upon any conscientious beliefs which he has formed since the rehearing by the court of review of his first application. (at p97)

5. The applicant submits that a registered person is entitled to make repeated applications for a decision that he is a person to whom s. 29A (2) applies and that each dismissal of such an application merely decides that at the date of the related application or at the date of its dismissal the applicant was not such a person. Consequently, he claims that the magistrate was bound to hear his second application and that, upon the hearing of it, he would be able to grant it. (at p97)

6. The problem for the Court concerns only the proper construction of the Act in this respect. The correctness of the views expressed by the Queensland courts in the decision of the earlier application is not a matter for examination by this Court. If there be no error of law affecting its validity, the decision of the court of review on the merits of the application is made final and conclusive by s. 29C (7). I turn therefore to examine the relevant sections of the Act to determine whether such repeated applications may be made. (at p97)

7. Section 29A (2) of the Act provides that 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 such beliefs, be required to engage in duties of a combatant nature. The sub-section presupposes that the person to whom it applies is a person liable to render service under the Act, that is to say, is a person within s. 25 (1), not being an exempt person within ss. 25 (1) (c) and 29 (1) or 29A (1). The Act contemplates that a person who is liable to render service under the Act will in any case, when required, do so. Section 29A (2) is directed only to the nature of the service which the registered non-exempt person may be called to render. The Act by ss. 29B and 29C provides the means for determining the question when it arises whether or not a person is a person to whom ss. 29A (1) or 29A (2) applies. The effect of s. 29A (4) read with the other sub-sections is that, where the appropriate beliefs are held or formed before a person begins to render service under the Act, an order that he is a person to whom ss. 29A (1) or 29A (2) as the case may be applies must be obtained before he begins to render that service; otherwise the registered person must serve as required. Sections 29A (3) and 29A (4) provide for the case of a person who forms such beliefs after he had commenced to render service under the Act. Thus the Act ensures that the exemption from service or the limitation upon the nature of the service which may be required should not be accorded after the commencement of service upon the ground of beliefs formed and held before that commencement. But these provisions, in my opinion, have slight, if any, bearing on the question whether repeated applications for exemption from, or for a limitation upon, service can be made either before or after that commencement. (at p98)

8. In my opinion, however, it is apparent from these provisions of the Act that the applicability of s. 29A (2) to an individual is made to depend upon a decision of a tribunal and the making of an order under ss. 29B or 29C. The form of the order to be made is prescribed by the National Service Regulations and the Schedule thereto: reg. 34. In the case where the tribunal finds the appropriate conscientious belief is held, the form of the order is according to Form 10:

"I find that he 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 section 29A of the Act liable only to undertake such duties of a non-combatant nature."

By reg. 37 the Military Board is required to make arrangements for securing that a person in respect of whom such an order has been made shall be employed only in the duties specified in the order. (at p98)

9. In the event that the tribunal does not find that the appropriate conscientious belief is held, the order is to be according to Form 11, namely:

"I find that he does not hold a conscientious belief that does not allow him to undertake military duties of a combatant or non-combatant nature and I accordingly dismiss the application."

The order of dismissal of an application will be in this form whether the court comes to its decision because the applicant has failed to discharge the onus placed upon him by s. 29D or because the court has reached a positive conclusion against the applicant's contention. On appeal the court of review may affirm or vary the decision of the court of summary jurisdiction: s. 29C (4) (b). If it affirms the decision, the order of the court of summary jurisdiction stands in the form in which, in conformity with the Regulations, it was made. Section 29C (7) makes these orders final and conclusive. (at p99)

10. The registered person is liable to render service on a call-up notice until he is twenty-six years of age: ss. 25 (1) and 26. But the legislature has made no express provision for applications based upon a change in the beliefs of the registered person, except inferentially in ss. 29A (3) and 29A (4) (a). But these provisions are negative in their operation, designed to prevent an order of exemption or limitation being made after the commencement of service in respect of beliefs existing before that commencement. The legislature, however, cannot have contemplated that the period of time elapsing between registration and a call-up notice pursuant to s. 26 would always be so short that no genuine change of belief could possibly occur within it. Rather, it must be taken to have contemplated the possibility of a change of belief, even granting that conscientious beliefs are usually of an enduring kind. There is no express prohibition of successive applications for exemption from, or limitations upon, service except in so far as the finality given by s. 29C (7) to the findings of the tribunals would operate to prevent them. I will return later to deal with the consequences of s. 29C (7). I would first examine what is involved in the nature and extent of the exemption and limitation for which ss. 29A (1) and 29A (2) respectively provide. Each are intended to apply only so long as the requisite beliefs are held. Also, s. 25 (1) (c) is referable to a current situation. Therefore a question within s. 29B (1) can arise after an order has been made in favour of a registered person under either sub-s. (1) or sub-s. (2) and possibly can arise more than once thereafter as to whether or not a belief of the appropriate kind is currently held. Thus, for example, the dismissal of an application made by the Minister to discharge an order made in favour of a registered person under either ss. 29A (1) or 29A (2) because the tribunal found that that person still held the requisite beliefs would not prevent the Minister making a subsequent application on the ground that subsequent to that dismissal the registered person had ceased to hold such beliefs: but he could not do so, in my opinion, because he had what he thought was fresh evidence as to whether such beliefs were held at the time of the former application. (at p100)

11. But it does not necessarily follow that the registered person may make successive applications. Yet nothing in the Act requires the registered person to have had the requisite beliefs at any particular time, e.g. at the time of registration or even at the date of the service of the notice calling him up for service. Not having them at either of these times, he could make an application before commencing his service on the ground that he then, that is, at the time of the application, held them. The recency of their formation would be no answer to his application however much that fact may be of significance in judging whether he did genuinely hold the beliefs. Sections 29A (3) and 29A (4) (a) provide the only express limitation upon the time at which an application may be made by the registered person at any time in respect of beliefs held at the time of the making of the application. (at p100)

12. It seems to me, again by way of example, that the discharge of an order of exemption under s. 29A (1) or of limitation of service under s. 29A (2) on the ground that the registered person had ceased to hold the requisite beliefs would not of itself prevent that person from applying subsequently for an order under either subsection on the ground that since that dismissal he had again formed and now conscientiously held these beliefs. But again he could not apply to reverse the former finding upon new material which he desired to place before the tribunal. (at p100)

13. But in each of these instances it is, in my opinion, the claim that the beliefs have undergone change which would ground such an application and the actual change in the beliefs which would justify the making of the order. The question arising which found the jurisdiction of the tribunal though in form it is whether the applicant now holds the requisite beliefs, must be in substance, having regard to the fate of the earlier application, whether the beliefs have been formed meantime. (at p100)

14. I have come to the conclusion that apart from s. 29C (7) nothing in the Act except ss. 29A (3) and 29A (4) prevents an application being made at any time by the Minister or the registered person, including the serviceman as to beliefs formed after the commencement of his service, for the appropriate finding and order under ss. 29A (1) or 29A (2) and that a prior order or the refusal or discharge of such an order will not constitute a bar to the making of such an application if the application is grounded upon a change in the relevant situation since the making, refusal or discharge of an order as the case may be or prevent the making of such a finding or order if such a change is made out to the satisfaction of the tribunal. The durability of conscientious beliefs and the time they might be expected to take to form are, of course, material factors in considering whether the beliefs are in truth conscientiously held at the relevant time but are not in themselves reasons for denying the competence of an application or the tribunal's authority to make an order when satisfied of the necessary facts. (at p101)

15. The finality given to the orders of the court of review by s. 29C (7) and the definitive nature of the order of a magistrate where there is no appeal therefrom do not, in my opinion, require any contrary conclusion in the case of abandoned or changed beliefs. Those orders do determine that the applicant is or is not, at the time of their making, a person to whom ss. 29A (1) or 29A (2) as the case may be applies. As to that fact they are final and conclusive. But it seems to me that they cannot preclude an examination as to a supervening change of fact which it is claimed has taken place in a relevant respect or the making of an order based upon such a change if found in fact to have taken place. (at p101)

16. These conclusions would, in my opinion, be valid in relation both to the period before the commencement of service and to the period thereafter. Thus, it seems to me that it could not be held that in no circumstances can a further application be made before the commencement of service where an application for an order has already been refused on the ground that the requisite beliefs were not then held. (at p101)

17. But the reasons for which I have concluded that such further applications and orders may be made upon the ground of changed circumstances do not, in my opinion, answer the question in this case which is whether, though there be no claim that there has been a change in belief, successive applications may be made for an order under ss. 29A (1) or 29A (2), irrespective of the fate of the earliest, or for that matter of any, of them. (at p101)

18. As I have already mentioned, the Act expressly provides for a rehearing of an application for an order under either of these sub-sections. It has provided that the decision of the court of review on that rehearing shall be final. It makes no other provision for a rehearing. It is true enough as I have indicated that the court of review and the magistrate can do no more than determine what are the current beliefs of the registered person and that it may be said that finality only attaches to the court of review's conclusion in that respect. But if the beliefs are not changed they remain as the court of review found them. Thus although formally the tribunal's decision may be related to the state of the applicant's conscientious belief at the time the application is before it, without intervening change in belief, that decision does conclude the nature of the applicant's belief at the subsequent time. (at p102)

19. This may be expressed in relation to the jurisdiction of the magistrate, by pointing out that that jurisdiction depends upon a question arising. Clearly, the question whether an applicant had at the date of the dismissal of his former application the beliefs which he then claimed cannot arise. That question is settled by the former order. In my opinion, the only question which can subsequently arise is whether by reason of a change of belief since the former application, the applicant at the date of his later application holds the necessary beliefs. It is the arising of that question which, in my opinion, attracts the jurisdiction of the magistrate. (at p102)

20. In my opinion, therefore, the Act not only requires that in respect of conscientious beliefs formed before the commencement of service under the Act a registered person, if he would limit the nature of the service which he may be called upon to render under the Act, must obtain an order before he commences to render that service that he is a person to whom s. 29A (2) applies, but it contemplates that unless there be a change of belief meantims only one application for such an order can be made before he commences to render service. A new application which is not founded upon a change of belief for a like order after the dismissal of an earlier application amounts, in my opinion, to no more than an attempt to have a rehearing of the original application. That in reality and indeed avowedly is what this applicant seeks to do. In my opinion, the finality attaching to the result of the first rehearing extends to prevent the hearing of an application which amounts to no more than an attempt to rehear the application which has already been heard and dealt with. It operates to prevent a question arising as to an applicant's beliefs unless they are acquired subsequently to the making of the order of dismissal. Accordingly, I am of opinion that once the earlier order was before him, without any claim to subsequent change of belief, the magistrate had no jurisdiction to entertain the applicant's second application. Consequently this action, in my opinion, for that reason should be dismissed. (at p102)

21. However, if I am wrong in thinking that a claim to a supervening change of belief is essential to found jurisdiction to entertain an application made subsequently to the making of an order in the form of Form 11 (supra, p. 98), and if the correct view is that the magistrate had jurisdiction in this case, I would not grant mandamus as, in my opinion, the magistrate would be bound to refuse the application, having regard to the basis on which it is made as explained in the affidavits filed in this motion. (at p103)

McTIERNAN J. This motion is concerned with an application under reg. 31 (b) and (d) of the National Service Regulations. It is shown by the terms of the application that it purports to raise a question which the respondent to the motion has jurisdiction under s. 29B of the National Service Act 1951-1965 (Cth) to hear and decide. Such question is whether Noel Edgar Collett is a person to whom sub-s. (2) of s. 29A of this Act applies. The question arises from a claim which he makes in the application which reads thus: "I hold a conscientious belief that does not allow me to engage in military duties of a combatant nature, but allows me to engage in military duties of a non-combatant nature." The application is made, as required by reg. 32, in accordance with Form 7 and is put in the words of that form. The claim by the applicant that he holds the conscientious belief means that he holds that belief at the time of the application. This, of course, does not mean that it began on that day. The applicant is asserting that the conscientious belief is then existing in his mind. He is not necessarily saying that he held it at any former period. (at p103)

2. I am unable to distinguish the conscientious belief relied upon in this application from that referred to in Collett's application dated 1st April 1965. That application was also made under reg. 31 (b) and (d). Upon the hearing of it the magistrate constituting the court found that Collett did not hold the conscientious belief and, accordingly, dismissed the application. A court of review, upon a rehearing of the application, affirmed the decision of the magistrate. Section 29C says that a decision of a court of review is final and conclusive. This provision gives these qualities to the finding that, at the period relevant for the purpose of the application dated 1st April 1965, Collett did not hold the conscientious belief. The decision of the magistrate or of the court of review does not deny the possibility that, in the future, a conscientious belief of the same kind would exist in Collett's mind. He claims, by his application of 4th April 1966, that, in fact, the conscientious belief is present in his mind. Regulation 31, itself, states only one condition which an applicant should fulfil. The condition is expressed in these words: "If a person claims" that he holds a belief included in either sub-ss. (1) or (2) of s. 29A. No question under sub-ss. (3) or (4) of that section arises in the present case. (at p104)

3. I cannot agree in the case of the applicant, in this motion, that his right under reg. 31 (b) and (d) to apply for registration as a conscientious objector ceased when he made his application dated 1st April 1965. This is not to say that he would have the right to make another application alike in all respects to that application. The difference between the two applications under consideration is that the earlier application was concerned with a period ending in April 1965 whereas the later application is concerned with a period beginning then. If the finding on the issue of conscientious belief raised by the earlier application had been favourable to Collett it would have been effective to support registration as a conscientious objector so long as he would hold the belief. Accepting that the finding on the issue means that Collett did not then hold the conscientious belief, it is nevertheless an open question whether he formed such a belief before he made the application of 4th April 1966. (at p104)

4. When this application came on for hearing before the court of which the respondent was magistrate he was, in my opinion, presented with a question, not decided beforehand, falling within the jurisdiction conferred on the court by s. 29B of the National Service Act 1951-1965. I think it was the duty of the court under that section to hear and decide the question. It appears to me that this is a case in which this Court may make an order of the nature mentioned in par. (a) of sub-s. (1) of s. 33 of the Judiciary Act 1903-1965 (Cth). I would make an order giving such relief to the applicant in the motion. (at p104)

TAYLOR J. On 1st April 1965 the applicant lodged an application, on a prescribed form, for registration as a conscientious objector pursuant to the National Service Act 1951-1964 (Cth). The grounds of his application, as briefly stated by him, were that he conscientiously objected to serve in military duties of a combatant nature but that he was willing to serve in any other way. Having made this application the relevant issue of fact came for decision before a court of summary jurisdiction constituted in accordance with s. 29B of the Act. His application was dismissed on 25th August 1965 and from the decision of the magistrate he took an appeal to the Queensland District Court where, again, he was unsuccessful. (at p104)

2. Subsequently, on 4th April 1966, he made a second application "to be registered as a person who is liable to be called up for service under the National Service Act, but who is not required to engage in duties of a combatant nature, on the ground that I hold a conscientious belief that does not allow me to engage in military duties of a combatant nature, but allows me to engage in military duties of a non-combatant nature". (at p105)

3. Before the magistrate counsel for the Minister objected that the Court had no jurisdiction to entertain a second application which, as the magistrate observed, was "virtually identical with an application adjudicated by me on 25th August 1965". Having observed that there had been an appeal from the earlier decision and that the decision on appeal was declared by s. 29C (7) of the Act to be final he held that he had no jurisdiction to entertain a further application. The applicant now seeks a writ of mandamus directing the magistrate to hear and determine his application. (at p105)

4. A survey of the legislation has satisfied me that more than one so-called application may be made by a person claiming to be exempt from liability to render service under the Act. Originally s. 29 of the Act was the provision which prescribed the conditions upon which persons were exempt from liability to render service. It was in the following terms:

"29 (1.) The following persons are exempt from liability to render service under this Act, so long as the employment, condition or status on which the exemption is based continues: - (a) persons subject to a prescribed physical or mental disability;

(b) persons whose conscientious beliefs do not allow them to engage in any form of naval, military or air force service;

(c) persons who are students at a theological college as defined by the regulations or are theological students as prescribed;

(d) ministers of religion; and (e) members of a religious order who devote the whole of their time to the duties of the order and persons who are students at a college maintained solely for training persons to become members of a religious order. (2.) Where a question arises as to whether a person is exempt from liability to render service under this Act, the burden of proving the exemption rests on the person claiming the exemption and the question shall be decided in accordance with the prescribed procedure by a court of summary jurisdiction constituted by a Police, Stipendiary or Special Magistrate. (3.) Where a court finds that a person holds conscientious beliefs which do not allow him to undertake duties of a combatant nature but allow him to undertake naval, military or air force duties of a non-combatant nature, that person is liable only for such duties of a non-combatant nature. (4.) In this section, 'conscientious beliefs' includes all conscientious beliefs, 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."

Two things should be observed in relation to this section. The first is that the exemption continued "so long as the employment, condition or status on which the exemption is based continues" and the second is that sub-s. (2) was in general terms and was not limited to making provision merely for the determination of application by persons claiming to be exempt. A question whether a person was exempt from liability to render service might equally well have arisen in relation to a person, earlier declared to be exempt, when it was claimed by the Minister that the employment, condition or status on which the exemption was based no longer continued. For instance, it might have been asserted that the person in question was no longer "subject to a prescribed physical or mental disability", or was no longer a student at a theological college or a theological student as prescribed, or no longer a minister of religion and any such question might have been raised for determination at the instance of the Minister. On the other hand, it seems equally clear that it was competent for a person to whom the Act applied to make a second application in order to establish that subsequently to the dismissal of a first application he had become subject to a prescribed physical or mental disability, or had become a theological student as prescribed, or a minister of religion or that he had formed a conscientious belief which did not allow him to engage in any form of naval, military or air force service. (at p106)

5. However by the National Service Act 1953 the principal Act was amended by omitting from s. 29 par. (b) of sub-s. (1) and sub-ss. (3) and (4) of that section and by inserting a number of new sections - 29A, 29B, 29C and 29D - in the Act. The purpose of these amendments, it seems, was to make more specific provision with respect to persons whose conscientious beliefs did not allow them to engage in any form of military service and with respect to those whose conscientious beliefs did not allow them to engage in military duty of a combatant nature but allowed them to engage in military duties of a non-combatant nature and, further, to permit a right of appeal from a magistrate's determination on those questions to a court of review. But, it seems to me, there is nothing in the amendments to lead to the conclusion that only one application may be made. The exemption under s. 29A (1), or the partial exemption under s. 29A (2), continues only "so long as he (the person concerned) holds those beliefs" and, again, the question may arise from time to time whether he continues to hold those beliefs. Conversely the question may arise from time to time whether those beliefs have been formed after the dismissal of an earlier application. Indeed, the section recognizes that a person's beliefs may undergo a change from time to time and it deals specifically with cases where exempting beliefs are held by a person after he has commenced to render service. In such cases application may be made but will be successful only if the beliefs are formed after he has commenced to render service and, therefore, notwithstanding the inevitable dismissal of any application made by him before he commenced to render service. But what is to happen in the case of a person who has formed an exempting belief after the dismissal of an earlier application and before he commences to render service? In my view he is clearly entitled to make a second application. (at p107)

6. There is, in my view, nothing in s. 29C (7), which declares that the decision of a court of review under this section is final and conclusive, to affect this conclusion for the decision of a court of review upon the question before it can only be conclusive of the fact that at the time of the hearing the person concerned did or did not hold beliefs which entitled him either to full or partial exemption. (at p107)

7. The question then is whether we should direct the issue of a writ of mandamus. The remedy by way of mandamus is, of course, discretionary and the writ will be refused if its issue would be futile. But in spite of the magistrate's observation that the application was "virtually identical" with the earlier application I am not convinced that there was not an appropriate issue to try in relation to the second application, i.e., whether the applicant's beliefs at the time of the second application were such as to entitle him to partial exemption. I would therefore grant the application for mandamus. (at p107)

MENZIES J. The applicant is, and has at all times material been, a person who is liable to render military service but who has not commenced to render that service. The applicant having sought registration as a person whose conscientious objections 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 and a question having arisen whether he was a person to whom s. 29A (2) of the National Service Act (Cth) applied, a court of summary jurisdiction on 25th August 1965 decided that he was not and, upon his appealing to the District Court in Queensland, that Court on 30th November 1965 dismissed the appeal. On 4th April 1966 the applicant made another application for registration as a person whose conscientious objections 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. A question having arisen, this application was set down for hearing and, upon its coming on to be heard, the magistrate upheld an objection then taken on behalf of the Minister for Labour and National Service that the Court had no jurisdiction to hear and determine the question a second time. (at p108)

2. Whether the Court was right in deciding that it had no jurisdiction to adjudicate upon this second application is the question - and the only question - before this Court. (at p108)

3. The conclusion I have reached is that the Act authorizes only one determination - subject to appeal - upon the question, arising before the commencement of service, whether a person is one to whom s. 29A (2) applies, and that the Court below was right in deciding that it had no jurisdiction to hear and decide the second application. (at p108)

4. My reasons for this conclusion depend upon a survey of the whole of the Act and particularly upon the terms of s. 29A (4) (b), s. 29B, s. 29C (2) (4) (6) and (7), and s.29D which indicate that the decision of the Court is essential to make s. 29A(1) or s. 29A (2) applicable to a person claiming to be a conscientious objector. It appears to me that the provisions of the Act have been drafted upon the footing that, once it has been decided that a person is one to whom s. 29A does not apply, a notice of call-up under s. 26 will be served forthwith and no provision has been made for the hearing of further applications either on the ground that an earlier application was wrongly decided or that, since the determination of an earlier application, the applicant has acquired new conscientious beliefs. Once the question has been decided, that, I think, is the end of the matter, and I have found nothing in the Act providing for successive determinations of the question. Nor have I found sufficient to warrant a distinction being made between a second application based upon a supervening change of belief and a second application based upon the one belief held both before and after the first determination of the question. (at p108)

5. I consider, therefore, that the applicant's application for a writ of mandamus directing the hearing and determination of the second application should be refused. (at p109)

WINDEYER J. The argument that the magistrate should be directed to hear and determine what I may call the applicant's second application is based on the proposition that a conscientious objector's exemption from liability to serve arises from his holding the requisite conscientious beliefs: therefore the fact that at some earlier time it was held he did not then hold them does not preclude the question. That I think is so. I agree in the reason which my brother Taylor has given for that conclusion. (at p109)

2. No doubt the Act proceeds on the assumption that beliefs are ordinarily firm and constant and are likely to remain unchanged in the time between registration and call-up. Sudden conversions - if conversions ever occur without some kind of premeditation - are no doubt unlikely to occur. Nevertheless it seems that months may elapse between a decision rejecting an application for exemption and a call-up notice. And in that time it is possible for a man's conscientious beliefs genuinely to change and develop, to clarify and intensify and become for him more dominating and compelling. If that happens, he may, I think, apply again, notwithstanding that his earlier application had been rejected. If the magistrate hearing his second application thought that he was doing no more than repeating in substance what he had earlier said, that he held no new views and exhibited no greater sincerity or conviction of belief, one would expect his new application to be promptly rejected. Nevertheless, as I see it, the task for the magistrate would not be to inquire whether the beliefs which the applicant professed were philosophically different from those he had earlier professed. A comparison between a presently expressed belief and its intellectual and spiritual antecedents might sometimes be too profound for a court to undertake; and it would seldom be necessary. The essential question for the magistrate would be, was the applicant at the time of the hearing before him exempt on the ground of his having conscientious beliefs as described in the Act? (at p109)

3. Regulation 33 of the National Service Regulations requires that every application for registration as a conscientious objector must be submitted to a court of summary jurisdiction. This apparently is on the assumption that a question always arises pursuant to s. 29B from the mere fact that a man claims to be exempt on conscientious grounds. I do not have to decide whether this view is correct. It gets support from the words "it had been decided" appearing in s. 29A (4) (b) - the decision required being, it may be said, a judicial not an administrative one. In this case, the officers of the Department of Labour and National Service (which deals with these matters before men liable to serve are enlisted in the Army) thought fit to oppose the applicant's claim to be exempt from combatant duties, although he was quite willing to perform non-combatant duties. His claim was rejected. An importance that seems unwarranted has been given to the case of a man, not well educated, who on religious, if unsophisticated, grounds asked only that he be excused from combatant duties. Of course a military commander does not wish to have in his command a great number of men who can only be required to perform non-combatant duties. But non-combatant duties in the Army are often as arduous and as wearisome as combatant duties. And in the field they may be as dangerous - as, for example, if they involve succouring the wounded during action, or disposing of or rendering safe unexploded bombs and mines in rear areas. (at p110)

4. The applicant failed to satisfy the magistrate and the court of review that at the time of his former application his beliefs entitled him to the order which he sought. But the issue raised by his second application has not been judicially resolved. I would grant a mandamus. (at p110)

Orders

Order that the respondent Edward Noel Loane hear and determine the application of Noel Edgar Collett made on the fourth day of April 1966 for an order pursuant to the National Service Act 1951-1965 (Cth) and the National Service Regulations made thereunder that he is a person who 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 that Act, liable only to undertake such duties of a non-combatant nature.

Order that the respondent Minister pay the applicant's costs.