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…