The Queen v. The District Court of the Metropolitan District Holden at Sydney and Others; Ex Parte White.1
| DOI | 10.1177/0067205X6700200206 |
| Date | 01 June 1967 |
| Published date | 01 June 1967 |
| Author | J. W. Constance |
| Subject Matter | Case Notes |
CASE NOTES
THE
QUEEN
v.
THE
DISTRICT
COURT
OF
THE
METROPOLITAN DISTRICT
HOLDEN
AT
SYDNEY
AND
OTHERS; EX PARTE WHITE.1
Constitutional law-Prohibition and certiorari-High Court jurisdiction-
Jurisdictional error and error
of
law-National
Service
Act
1951-1965
(Cth)-'
Conscientious belief'.
Section 29A
of
the National Service Act 1951-1965 (Cth) provides:
(1.) Aperson whose conscientious beliefs do not allow him to engage
in any form
of
military service is, so long as he holds those beliefs,
exempt from liability to render service under this Act.
(2.) Aperson whose conscientious beliefs do
not
allow him
to
engage in military duties
of
acombatant nature
but
allow him
to
engage in military duties
of
anon-combatant nature, shall not, so
long as he holds those beliefs, be required to engage in duties
of
a
combatant nature.
Section
29B
(2.) provides:
Where aquestion arises whether aperson is, by virtue
of
sub-
section (1.)
of
the last preceding section, exempt from liability to
render service under this Act, the court by which the question is
heard may,
if
it
is
satisfied that the person
is
not so exempt but
that
the person
is
aperson to whom sub-section (2.)
of
that section
applies, decide accordingly.
Astipendiary magistrate found that the applicant, White, was
not
totally exempt under section 29A (1.),
but
exercising the discretion given
to him by section
29B
(2.) he ordered that the applicant be required
to
undertake non-combatant duties only. On appeal, the District
Court
affirmed this order.
The present case came before the High Court as
an
application by
White for certiorari to quash the decision
of
the District Court,
or
alternatively for prohibition to the District Court, the presiding judge,
the Minister
of
State for Labour and National Service and the Common-
wealth
of
Australia to prevent the execution
of
the order. The application
for certiorari was made on the ground
of
an error
of
law on the face
of
the record
of
the District Court. On the application for prohibition
it
was argued that acorrect finding that the applicant was not exempt
under section 29A (1.) was an essential prerequisite to the Court's having
jurisdiction to make an order under section
29B
(2.). Hence, it was
argued, as this decision had not been correctly made, the District Court
had
acted without jurisdiction in making the order it did. The High
Court held that neither jurisdictional error nor error
of
law had been
established.
1(1966) 40 A.L.J.R. 337. High Court
of
Australia; Barwick C.J., McTiernan,
Taylor, Menzies and Windeyer
JJ.
270
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