Collett v Loane [1966] HCA 71

High Court of Australia Barwick C.J. McTiernan, Taylor, Menzies and Windeyer JJ. Collett v Loane [1966] HCA 71

ORDER 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.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 28 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).

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.

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.