National Security (Conscientious Objectors) Regulations (Cth)

STATUTORY RULES.

1942. No. 80.

REGULATIONS UNDER THE NATIONAL SECURITY ACT 1939-1940 *

I, THE GOVERNOR-GENERAL in and over the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the National Security Act 1939-1940.

Dated this twenty third day of February, 1941.

Governor-General.

By His Excellency’s Command,

for and on behalf of the

Minister of State for Defence Co-ordination.

 

National Security (Conscientious Objectors) Regulations.

Citation.

1. These Regulations may be cited as the National Security (Conscientious Objectors) Regulations.

Administration.

2. These Regulations shall be administered by the Minister of State for the Army.

Suspension of application of certain provisions.

3. Subject to regulation 7 of these Regulations, so long as these Regulations continue in force no person shall be exempt from any service by virtue of paragraph (i) of sub-section (1.) of section 61 of the Defence Act, and a person claiming to be exempt from service by virtue of these Regulations shall not be entitled to make an application under regulation 140c of the Australian Military Regulations.

Definitions.

4. In these Regulations, unless the contrary intention appears—

“Area” means a training area approved by the Military Board pursuant to the provisions of regulation 42 of the Australian Military Regulations;

“Area Officer” means an area officer within the meaning of the Australian Military Regulations;

“competent court of summary jurisdiction” means a court of summary jurisdiction constituted by a police, stipendiary or special magistrate;

 

* Notified in the Commonwealth Gazette on , 194 .

6162.—20/6.11.1941.—Price 5d.

 

“conscientious belief” includes any conscientious belief, whether the ground thereof is or is not of a religious character, and whether the belief is or is not part of the doctrines of any religion;

“the appropriate court” means a District Court, County Court or Local Court of Full Jurisdiction in the State or Territory of the Commonwealth (other than the Territory of New Guinea) in which the applicant, or the person whose registration or enrolment is to be reviewed, is residing, or, if there is no such court, or the applicant or that person is residing in the Territory of New Guinea, the Supreme Court of the State or Territory of the Commonwealth in which the applicant or that person is residing;

“the Defence Act” means the Defence Act 1903-1941;

“the Register” means the Register of Conscientious Objectors kept by the Minister in pursuance of these Regulations;

“the Schedule” means the Schedule to these Regulations.

Register ofconscientiousobjectors.

5.—(1.) For the purposes of these Regulations the Minister shall keep a register to be known as the Register of Conscientious Objectors.

(2.) The Register may be kept in sections, one section being kept in each Military District.

Application for registration as conscientious objector.

6.—(1.) If any person liable under the Defence Act to serve in the Citizen Forces, and who has not, prior to the commencement of these Regulations, taken the oath, or made the affirmation, of enlistment, claims that he holds a conscientious belief which does not allow him—

(a) to perform naval, military or air force service (whether combatant or non-combatant); or

(b) to perform combatant naval, military or air force service,

he may make application to be registered or enrolled as a conscientious objector.

(2.) The application shall be in accordance with Form 1 in the Schedule and shall be posted or delivered (in duplicate) to the Area Officer of the Area in which the applicant is residing—

(a) in the case of a person who has, before the commencement of these Regulations, been medically examined pursuant to the Australian Military Regulations—within one month after the commencement of these Regulations; or

(b) in any other case—at any time before he is so medically examined or not later than two days after he has been so examined,

or, in either case, within such extended time as the Minister allows.

(3.) The Minister may allow an extended time within which an application may be posted or delivered if he is satisfied that the application has not been unreasonably delayed.

(4.) Upon receipt of an application under this regulation, the Area Officer shall forthwith forward one copy of the application to the clerk of a competent court of summary jurisdiction within the Area,

 

who shall arrange for the application to be set down for hearing by that court and shall give to the Area Officer and the applicant not less than seven days’ notice in writing of the date, time and place fixed for the hearing.

Persons exempted under sec. 61 (1.) (i) of Defence Act.

7. Nothwithstanding anything contained in these Regulations, or in any other regulations, or in any Act—

(a) a person who, prior to the commencement of these Regulations, has been granted exemption by a Court as a person entitled to exemption by virtue of paragraph (i) of subsection (1.) of section 61 of the Defence Act shall be enrolled (if he is not already so enrolled) under the Defence Act as a person liable to be called up for service in the Citizen Forces, but to be employed only in non-combatant duties, and shall be deemed to be so enrolled in pursuance of an order of a Court under regulation 10 of these Regulations;.

(b) a person who has been granted such exemption, whether by an Area Officer or by a Court, and whether so enrolled or not or whether he has taken the oath, or made the affirmation of enlistment or not, may, within one month after the commencement of these Regulations, or within such extended time as the Minister allows, make an application under regulation 6 of these Regulations to the Area Officer of the Area in which the applicant is residing; and

(c) where any person mentioned in paragraph (b) of this regulation is ordered to be registered in the Register, he shall be discharged from the Citizen Forces as a person whose liability to serve under Part IV. of the Defence Act has ceased.

Appeal.

8.—(1.) An applicant for registration or enrolment as a conscientious objector who is aggrieved by any order of a court of summary jurisdiction, or the Minister, if he considers it necessary, may, within 21 days after the date of the order, or (in the case of an applicant) within such further period as the Minister in any particular case for special reasons allows, appeal to the appropriate court by filing a notice of appeal in accordance with sub-regulation (3.) of this regulation.

(2.) Where a notice of appeal is filed by the applicant or the Minister outside the time allowed by sub-regulation (1.) of this regulation, the appropriate court may entertain the appeal if it is satisfied that, by reason of special circumstances, the delay was reasonable.

(3.) A notice of appeal under sub-regulation (1.) of this regulation shall be in accordance with Form 2 in the Schedule and shall be filed with the Registrar, Prothonotary or other proper officer of the appropriate court and a copy thereof posted or delivered by the appellant to the Area Officer of the Area in which the applicant is residing or to the applicant, as the case may be, not less than seven days before the date of the hearing of the appeal.

 

(4.) The jurisdiction of the appropriate court under this regulation may be exercised by a magistrate or a single Judge sitting in chambers and shall be by way of re-hearing.

Minister entitled to be represented on hearing of application or appeal.

9. The Minister or any person authorized by him shall be entitled to be heard on the hearing of any application, appeal or review under these Regulations.

Order to be made on application or appeal.

10.—(1.) A competent court of summary jurisdiction, if satisfied, upon an application duly made to it under these Regulations, or the appropriate court, if satisfied on appeal, that the applicant holds a genuine conscientious belief that it is wrong—

(a) to perform naval, military or air force service (whether combatant or non-combatant); or

(b) to perform combatant naval, military or air force service,

shall by order direct either—

(c) that the applicant shall be registered in the Register—

(i) without conditions; or

(ii) conditionally—the condition being that, if so directed by the Minister of State for Labour and National Service, he shall undertake such work of a civil character and under civilian control as is specified by that Minister, and shall undergo any training provided or approved by that Minister to fit him for that work; or

(d) that he shall be enrolled under the Defence Act as a person liable to be called up for service in the Citizen Forces, but to be employed only in non-combatant duties,

but, if not so satisfied, the court shall by order direct that his name shall not be so entered in the Register or so enrolled or, if already so entered or enrolled, that his name he removed from the Register or that the enrolment shall be cancelled.

(2.) A court shall, in determining any application, have regard (in addition to all other relevant considerations) to the extent to which the evidence of the applicant is corroborated, and to the period during which the applicant claims to have held his conscientious belief and the circumstances in which he claims to have formed it and to have continued to hold it, but the court may, if it thinks fit, accept the evidence of the applicant whether it is corroborated or not.

(3.) A copy of the order of the court shall forthwith be forwarded by the Clerk or the court, or the Registrar, Prothonotary or other proper officer of the appropriate court, as the case may be, to the applicant and to the Area Officer of the Area in which the applicant resides.

Review of registrations.

11.—(1.) If it appears to the Minister at any time that, by reason of facts or circumstances which have come to his notice, or have arisen, since the decision of an application for registration or enrolment pursuant to these Regulations, or, in the case of a person specified in paragraph (a.) of regulation 7 of these Regulations, since the order of the court granting the exemption, sufficient reason exists for reviewing the registration or enrolment under these Regulations of any person (in this regulation referred to as “the respondent”), he may apply

 

to a competent court of summary jurisdiction in the Area in which the respondent is residing for an order that the registration or enrolment of the respondent shall be cancelled or varied.

(2.) An application under this regulation shall be made to the clerk of the court in writing signed by the Minister, and the clerk shall arrange for the application to be set down for hearing by the court, and shall give to the Area Officer of the Area in which the respondent is residing not less than fourteen days’ notice in writing of the date, time and place fixed for the hearing of the application.

(3.) The Area Officer shall cause to be served personally on the respondent at least seven days before the date fixed for hearing the application a notice of the time and place fixed for that hearing, and shall cause to be filed with the clerk of the court an affidavit of the service of the notice.

(4.) Upon the hearing of the application, the court, if satisfied, by reason of facts or circumstances of the kind described in sub-regulation (1.) of this Regulation, that the respondent was not, or is no longer, entitled to be registered or enrolled in the manner in which he is registered or enrolled, may order the cancellation or variation of the registration or enrolment of the respondent.

(5.) Appeals may be brought against any order, or refusal to make an order, under this regulation in like manner as appeals may be brought under regulation 8 of these Regulations.

Registration of particulars of conscientious objectors.

12.—(1.) Where it is ordered that a person shall be registered in the Register, the Minister shall cause to be entered in the Register the particulars concerning him contained in his application for registration, and shall cause any inconsistent enrolment to be cancelled.

(2.) If, while a person is conditionally registered in the Register, any change occurs in the particulars concerning him entered in the Register, he shall forthwith notify the change in writing to the Area Officer of the Area in which he is residing.

Failure to observe condition of registration.

13.—(1.) A person conditionally registered in the Register in pursuance of these Regulations shall observe every condition upon which he was registered.

(2.) Where a person is convicted of a contravention of this regulation, the Minister may remove his name from the Register.

Persons registered not to be called on to enlist.

14.—(1.) A person shall not be liable under the Defence Act to enlist or serve so long as he is registered in the Register or, unless already enlisted or serving, while an application by him for registration in the Register, or an appeal against an order on such an application, is pending, or while the time for bringing such an appeal has not expired.

(2.) A person enrolled as a person liable under the Defence Act to be called up for service in the Citizen Forces but to be employed only in non-combatant duties may take an oath or make an affirmation in accordance with Form 3 in the Schedule instead of the oath or affirmation prescribed by the Defence Act, and shall not be liable to perform any duties of a combatant nature.

 

(3.) The Naval Board, the Military Board and the Air Board shall make arrangements for securing that where a person enrolled as a person liable under the Defence Act to be called up for service in the Citizen Forces, but to be employed only in non-combatant duties, or whose application for such enrolment, or whose appeal against an order on such an application, is pending is called up under that Act for service, he shall, during the period of such service, be employed only in such duties.

Request for cancellation or variation of registration or enrolment.

15.—(1.) A person who is registered in the Register may request the Minister—

(a) to cause his name to be removed from the Register; or

(b) to cause his name to be removed from the Register and to cause him to be enrolled under the Defence Act as a person liable to be called up for service in the Citizen Forces, but to be employed only in non-combatant duties.

(2.) A person who is enrolled under the Defence Act as a person liable to be called up for service in the Citizen Forces, but to be employed only in non-combatant duties, whether he has been so called up or not, may request the Minister to cause that enrolment to be cancelled and to cause him to be enrolled under that Act as a person liable to be called up for such service without restriction.

(3.) The Minister shall, if in his discretion he thinks fit to grant a request made in pursuance of this regulation, cause the necessary alterations to be made in the registration or enrolment.

(4.) A person whose request made pursuant to sub-regulation (2.) of this regulation has been granted shall be liable to take the oath or make the affirmation required by the Defence Act notwithstanding that he has taken an oath or made an affirmation in accordance with Form 3 in the Schedule.

(5.) A request pursuant to this regulation shall be in writing and shall be delivered or posted to the Area Officer of the Area in which the person making the request is residing or, if that person is serving in the Defence Force, to his commanding officer.

Determination of courts not to be called in question.

16. Except as provided in these Regulations, an order of any court made in pursuance of these Regulations shall not be called in question in any court of law.

Conditions of employment of persons undertaking civil work.

17.—(1.) Persons undergoing training or undertaking work in accordance with directions given by the Minister of State for Labour and National Service in pursuance of paragraph (c) of sub-regulation (1.) of regulation 10 of these Regulations shall be trained or employed upon such terms as to remuneration and conditions of training or service as the Minister determines.

(2.) Where the remuneration of any person undergoing training or undertaking work is less than that payable under any industrial award, agreement, determination or regulation in respect of that training or work, the difference between the amount so payable and the amount so determined shall be paid by the employer as soon as practicable after each pay period into such fund as that Minister specifies.

Falsestatements.

18. A person shall not make any false or misleading statement in any application made in pursuance of these Regulations.

 

THE SCHEDULE.

Form 1.

Reg. 6(2.).

National Security (Conscientious Objectors) Regulations.

APPLICATION FOR REGISTRATION OR ENROLMENT AS A CONSCIENTIOUS OBJECTOR.

To the Area Officer,

Name in full

[Surname first in Block Capitals]

Address in full

Occupation

Date and place of birth

Marital state—Single, married, widower or divorced person

Full name of mother and father, including mother’s maiden name

Particulars of present (or if unemployed, last) employment

Particulars of usual occupation

I apply—

(а) to be registered in the Register of Conscientious Objectors—on the ground that I hold a conscientious belief which does not allow me to perform naval, military or air force service (whether combatant or non-combatant);

(b) to be enrolled under the Defence Act as a person liable to be called up for service in the Citizen Forces, but to be employed only in non-combatant duties—on the ground that I hold a conscientious belief which does not allow me to perform combatant naval, military or air force service;

and I submit the following facts in support of my application: —

Strike out para, (a) or para. (b).

I declare that the foregoing information is true.

Signature

Date

 

Form 2.

Reg. 8 (2.).

National Security (Conscientious Objectors) Regulations.

NOTICE OF APPEAL FROM THE DECISION OF A COURT OF SUMMARY JURISDICTION.

Name in full

[Surname first in Block Capitals]

Address

Occupation

In accordance with regulation 8 of the National Security (Conscientious Objectors) Regulations, I hereby give notice of appeal to the

Court of the  of sitting

at on day of

19 at o’clock in the  noon against the order

of the Court directing that *

The grounds of my appeal are  

Dated this day of , 194

Signature of appellant.

* State effect of order.

 Set out grounds ofappeal.

Form 3.

Reg. 14 (2.).

National Security (Conscientious Objectors) Regulations.

FORM OF OATH.

I swear that I will well and truly serve Our Sovereign Lord the King and perform non-combatant duties in the Forces of the Commonwealth of Australia until the cessation of the present time of war or until sooner lawfully discharged, dismissed or removed and that I will in all matters appertaining to my service faithfully discharge my duty according to law. So help me God!

FORM OF AFFIRMATION.

I solemnly and sincerely affirm and declare that I will well and truly serve Our Sovereign Lord the King and perform non-combatant duties in the Forces of the Commonwealth of Australia until the cessation of the present time of war or until sooner lawfully discharged, dismissed or removed and that I will in all matters appertaining to my service faithfully discharge my duty according to law.

 

By Authority: L. F. Johnston, Commonwealth Government Printer, Canberra.