Giltinan v Lynch

[1971] HCA 23

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Windeyer, Owen, Walsh and Gibbs JJ.

GILTINAN v. LYNCH, MINISTER FOR LABOUR AND NATIONAL SERVICE

(1971) 124 CLR 153

9 June 1971

Defence and War

Defence and War—National Service—Liability to serve—Power of Secretary of Department to serve call-up notice on person liable to serve—Whether ballot may be taken to select persons to be called up—National Service Act 1951-1968 (Cth), ss. 10, 25, 26, 31.

Decisions

June 9.
The following judgments were delivered : -
BARWICK C.J. The Court has had an opportunity of considering this matter since we adjourned last night. We are in a position to deliver judgment, which we now propose to do. (at p154)

2. This is an application for an interlocutory injunction in a suit commenced by Robert Gary Giltinan, as plaintiff, against Phillip Lynch, the Minister of State for Labour and National Service of the Commonwealth of Australia, as defendant. An ex parte application for injunction made in chambers was referred into Court pursuant to s. 18 of the Judiciary Act 1903-1969 (Cth) and a direction given that the Deputy Crown Solicitor for the Commonwealth in Brisbane be served with notice of the application. (at p154)

3. It appears from the material placed before the Court that a notice was published in the Commonwealth of Australia Gazette on 17th July 1969 pursuant to s. 10 (1) of the National Service Act 1951- 1968 (Cth) (the Act) requiring all male persons not already registered under the Act who would attain the age of twenty years between 1st July and 31st December 1969 to register under the Act on 21st July 1969. The plaintiff was born on 4th July 1949 and thus within the terms of the notice. However, he was absent from Australia at the date of publication of the notice and on the date specified for registration therein and for some considerable time thereafter. He therefore fell within s. 11 (2) of the Act, and was required to register within fourteen days after his return to Australia. This he did. Subsequently he was served with a notice pursuant to s. 26 of the Act calling him up for service. He was required to present himself to that end at Sydney on 27th January 1971. On 14th January 1971 after receipt of that notice he lodged an application pursuant to s. 31 (4) of the Act for the deferment of his liability to render service under the Act on the ground that the rendering of service by him would impose exceptional hardship upon himself and upon his parents. This application is still current. Meantime because the date specified in the notice given to him under s. 26 of the Act had expired, it would seem that that notice was revoked by the Secretary to the Department of Labour and National Service pursuant to s. 26 (3) of the Act. (at p155)

4. I should dispose at once of a suggestion not seriously pressed by the Solicitor-General of the Commonwealth who appeared for the defendant that the plaintiff in those circumstances would be unable to make out any ground for the injunction sought by his writ, namely an injunction to restrain the defendant and all persons purporting to act under the authority of the Act from taking any further steps to call him up for military service under the provisions of the Act. Notwithstanding the revocation of the former notice, the Secretary to the Department may serve on the plaintiff a further notice to render service under the Act. See s. 26 (4). The plaintiff's claim is that the notice now revoked was invalid for reasons which he advances and he further contends that there would be no authority to serve a further notice on him for the reasons which he advances against the validity of the notice already given. It seems to me that the plaintiff has a sufficient interest to bring a suit at least for a declaration and also, as I think, for an injunction to restrain the Secretary from issuing a further notice to him under s. 26 of the Act. (at p155)

5. Upon the publication of the notice in the Government Gazette of 17th July 1969 the plaintiff became a person liable to render service under the Act. See s.25 (1) of the Act. His registration pursuant to that notice on his return from abroad reinforced that position. The Court has been told that twice in each year a ballot is conducted by the Department of Labour and National Service in order to select a sufficient number of those persons who have to that time registered under the Act and who are still liable to render service under the Act to provide the requirements of the military forces of the Commonwealth. Apparently an estimate is made of the number of persons who will be required to be provided by the ballot to provide the number of men to serve as required by the military forces having regard to the possibilities of deferment or exemption. The method of balloting is to withdraw from a receptacle marbles upon which a number is inscribed. Each number on a marble corresponds to two dates of the calender year. The effect of withdrawing the marble is that those registered persons who are still liable to render service whose birthday corresponds to one of the two dates represented by the number on the marble constitute the registrants to whom notices may subsequently be given under s. 26 (1) of the Act. When a sufficient number of marbles have been withdrawn to provide sufficient registrants to provide the number of servicemen required by the military forces no further marbles are withdrawn. (at p156)

6. I gather from the forms for registration for national service and from the written information on national service provided to registrants by the Department of Labour and National Service that a ballot is held about two months after the close of each registration period in order to select the registrants who are to be considered for call-up. A registrant whose birth date is not drawn in the ballot is regarded as "balloted out", is granted indefinite deferment of his liability to render service and is notified personally by letter. Whilst there is no express evidence on the point, it would seem that after a ballot is complete the Minister determines either by a standing directive or ad hoc that the registrants whose birth dates have not been withdrawn in the ballot are a class whose liability to render service under the Act he deems it necessary or desirable in the public interest to defer pursuant to s. 31 (1). Any deferment so granted may be cancelled or varied by the Minister at any time. See s. 31 (3). (at p156)

7. I should add for completeness that in the ballot conducted after the period for registration pursuant to the notice of 17th July, the date 4th July was not drawn in the ballot. Thereafter those who were registered in conformity with that notice and whose birthdays fell on 4th July had their liability to render service under the Act deferred by the Minister pursuant to s. 31 (1). But the plaintiff was not then registered. When he returned to Australia and registered, the date 4th July was drawn in a subsequent ballot conducted in respect of the period in which the plaintiff did so register himself for national service. Consequently, his liability to render service was not deferred. I may say at once there appears to have been no irregularity in this connexion and that I can find no legal consequence flowing from the circumstance that had the plaintiff been in Australia at or soon after 21st July 1969 his liability to render service would have been deferred. (at p156)

8. The plaintiff's argument in support of his application for an injunction is that the Minister may only exercise his discretion to defer the liability to render service under the Act where such a deferment in respect of a class of persons appears to him to be necessary or desirable in the public interest. He says that the selection by ballot of those whose liability to render service will be deferred by him is unlawful and not authorized by the Act. He then argues that the selection of those liable to render service under the Act upon whom a notice may be served by the Secretary under s. 26 by the same means, namely by ballot, is unlawful. The consequence, so he claims, is that the notice to render service which was served upon him by the Secretary was invalid and that any further notice based upon such a ballot would be invalid. He therefore claims an injunction to restrain any such notice or action upon it. (at p157)

9. The Act requires the registration of more persons, so we are told, than would be required by the military forces for its purposes. The plaintiff concedes that neither the Minister nor the Secretary is bound to call up all registrants for service with the military forces of the Commonwealth. He concedes that some selective process must be employed to determine those on whom a notice to render service will be given. But he says that the selection must be made by choosing classes of persons objectively described as for example, by occupation or other characteristic of some specific kind. To make the selection by ballot he claims is arbitrary and incapable of being regarded as in the public interest within the meaning of s. 31 (1) of the Act. As I have indicated, he treats the ballot as primarily designed to determine those whose liability to render service shall be deferred. But, he submits that unlawfulness as he claims it to be, does not merely render the deferment invalid : in his submission it makes the choice of those who may be required to serve unlawful and the notice given to each of them invalid. (at p157)

10. In my opinion, there is no substance in this argument. In the first place the authority to serve a notice on a person liable to render service under the Act calling that person up for service with the military forces is committed to the Secretary of the Department. The function of the ballot is, as I have indicated, to enable a sufficient number of the registrants liable to render service to be identified so that the current needs of the military forces may be met. Such a method of selection or identification of such persons is not, in my opinion, unlawful nor is it in breach of the Constitution. I reach this conclusion without reference to what is done elsewhere or what has been done in this country aforetime. I can find no reason to conclude that the Secretary's decision to serve a notice pursuant to s. 26 on any person to render service with the military forces of the Commonwealth is invalidated by the fact that this decision so to do results from a ballot conducted as I have indicated. The Secretary's discretion in determining the persons on whom he will serve a notice under s. 26 is not so limited that he must first determine categories of persons described by reference to some defined or definable characteristic or characteristics. The purpose of the ballot is not directly to aid the exercise by the Minister of his discretion to defer the liability of some person to service. (at p158)

11. It is not a necessary consequence of the selection of persons on whom a notice under s. 26 may be served that the liability of all the other registrants to render service is thereby or should be deferred. They could remain liable to render service and to be served at any time with a notice under s. 26. But, in my opinion, it certainly could be considered to be desirable in the public interest that their liability to render service should be deferred so that until that deferment is cancelled or varied the Secretary may not serve them a notice under s. 26. In that way a degree of certainty may be introduced both into their affairs and into those of the community in which they may be employed. The Minister has apparently thought so and consequently has exercised his power under s. 31 (1) in relation to them. It is not, in my opinion, precisely accurate to say that he has selected by ballot those whose liability to serve he defers, though it is true that the class of persons whose liability to serve he defers has been ascertained by reference to the results of a ballot. In my opinion, the Minister's decision to defer the liability to render service of the class of persons whose birth dates are not drawn in a ballot is not invalidated by the circumstance that the ballot has taken place or by the fact that that class is determined by reference to the result of the ballot. The Minister's discretion to defer the liability to serve of a class of persons is not circumscribed as the plaintiff claims and limited to classes of persons objectively described or defined by ascertainable characteristics. Indeed, apart from all else, practical considerations would make such a limitation not expressly imposed by the Act an unlikely limitation to be imposed by implication. Thus, in my opinion, neither the notice given by the Secretary pursuant to s. 26 nor the deferment of the liability to serve of those who are "balloted" out (to use the expression in the departmental information) is warranted by the fact that the identification of those called up and of those deferred is the result of a ballot conducted in the manner I have described. (at p158)

12. In my opinion, the plaintiff's application whether it be regarded as an application for a declaration of the invalidity of the notice or an application for an injunction to restrain the giving of a further notice should be dismissed. As this in substance disposes of the action I assume that the action should itself be dismissed. (at p159)

McTIERNAN J. I will not recapitulate the facts ; that has been very completely done by the Chief Justice. In my opinion, there is no ground shown for making any order in these proceedings in favour of Mr. R.G. Giltinan. (at p159)

2. The National Service Act is, of course, an exercise by the Parliament of the defence power. The sections of the Act which are most material here are ss. 26 and 31. The "Secretary" mentioned in s. 26 is the Secretary of the Department of Labour and National Service and the "Minister" mentioned in s. 31 is the Minister of State administering that Department. (at p159)

3. It cannot be maintained that either s. 26 or s. 31 is not a valid exercise of legislative power. The question to be decided is the validity in law of the procedure described as a ballot. In my opinion, the holding of such a ballot is in essence a means of exercising the administrative power conferred by s. 26 and s. 31 respectively. I consider that it is an appropriate means and, therefore, within power. The question whether it is a moral or ethical means does not arise in these proceedings. I do not pass any opinion on that aspect. (at p159)

MENZIES J. By s. 10 of the National Service Act the Minister is authorized to require, with immaterial exceptions, all males who on a day specified are resident in Australia and are within a particular age group, to register under the Act. Any man falling within the description of a notice - and the plaintiff is such a man - becomes liable to render service in accordance with s. 25 of the Act and may be called up by the Secretary pursuant to s. 26 of the Act. (at p159)

2. The number so made liable to render service always exceeds the number required for services in a period and, as a means of reducing the number, ballots are held. Those whose birthdays are within the dates chosen by ballot, form the group from which those to be called up under s. 26 will be chosen. The others, it seems, have their liability to render service deferred by the Minister under s. 31 (1) of the Act. (at p159)

3. The plaintiff attacks this system on the ground that the holding of ballots is not authorized by the Act. It is not expressly authorized nor is it expressly forbidden. The plaintiff can succeed only if it is impliedly forbidden as a means which may be adopted for the proper administration of the Act. (at p160)

4. I find nothing in the Act to make the holding of ballots illegal. The system has been attacked by the plaintiff as capricious and contrary to public policy. It has been defended by the Solicitor-General as a fair, quick and certain way of reducing the number of those liable to serve to the number required. With the policy of balloting, be it good or bad, this Court has nothing to do ; our only concern is with its legality. I am quite satisfied that the holding of ballots is an appropriate means of administering the Act and is not illegal. (at p160)

5. I should add that the reliance placed upon the terms of s. 31 (1), in my opinion, is misplaced. If the criticism that the method adopted by the Minister for granting deferments is wrong has been made out - and I do not think it has been - that would not assist the plaintiff in his action. To succeed he must show that it would be unlawful to serve upon him a call-up notice pursuant to s. 26, a question, as I see it, altogether independent of s. 31 (1). (at p160)

6. The plaintiff, who admittedly is liable to render service under the Act, also complained that if he should be called up it is likely that he will be the only man rendering service who was born on 4th July 1949. If it be so, it is unimportant. The reasons for his unique position would simply be that he was absent from Australia on 17th July 1969 when the notice to register which affects him was published. His obligation therefore became an obligation to register within fourteen days of his return to Australia - not on the date specified in the notice : s. 11 (2). (at p160)

7. In my opinion the action cannot succeed and both this application and the action should be dismissed. (at p160)

WINDEYER J. I agree that this application and action should be dismissed. (at p160)

2. For that conclusion I have nothing that I wish to add to what has been said by the Chief Justice and my brethren who have spoken. (at p160)

OWEN J. I agree with the reasons given by the Chief Justice for dismissing the application. (at p160)

WALSH J. I agree with the reasons of the Chief Justice and with the order he proposes should be made. (at p160)

GIBBS J. In my opinion also the application and the action should be dismissed. I agree with the reasons given by the Chief Justice and with those given by my brother Menzies. (at p161)

Orders

Question referred to the Full Court by the Chief Justice answered conformably with the Reasons for Judgment published this day. Action dismissed.