8th Parliament · 1st Session
The President (Senator the Hon. T. Givens) took the chair at 3 p.m., and read prayers.
Land Purchases : Commonwealth advance s -Repatr i at ion commission.
– I ask the Minister representing the Treasurer if he is aware that in New South Wales land has been purchased for returned soldiers upon which they have already been placed, and the original owners of the land are denied payment because the Federal Government are not financing the scheme in the manner in which they proposed. If such is the case, will the Government expedite the payment of the Federal Government’s share of these purchases?
– I am not aware that the position is exactly as the honorable senator has stated it, but I know that certain negotiations have passed between the New South Wales Government and the Commonwealth Government relative to advances from the Commonwealth Treasury.
– I ask the Minister for Repatriation if it is the intention ofthe Government to introduce a Bill for the abolition of control of this large spending Department by the Commission at present exercising that control, and to permit it to again be vested in the Minister?
– The Government has not, so far as I am aware, contemplated any such revolutionary change as the honorable member’s question suggests.
Extension to Natives of Brtish India
asked the Minister representing the Treasurer, upon notice -
If considerationhas been given, as some time ago was promised, to the matter of extending the benefits of the Old-age and Invalid Pension “legislation to natives of British-India resident in the Commonwealth, who are qualified in all respects except that they are of non-European race?
– A draft Bill to extend the benefits of the Invalid and Old-age Pensions Act to persons born in the territory of the British Empire of India has been prepared, and will be brought forward at a convenient opportunity.
Authority or General Birdwood
asked the Minister for Defense, upon notice-
If the Minister has denied that his letter to General Birdwood did in anywise effect or abrogate the rights of the officers of the A.I.F. to appeal against any decision affecting their military character, how does the Minister explain the following letter sent by Col. T. H. Dodds, D.A.G., A.I.F, dated 17.7.17, as follows: - “ Headquarters, 1st Australian Division. “With reference to your 123/116 of 9.7.17 forwarding a letter from Captain G. C. McLennan, A.A.V.C., addressed to the Army Council, concerning his supersession in the A.A.V.C., I am to inform you that it is not proposed to forward this letter to the Army Council, as it relates to a matter of the administration of Australian personnel, with which the Army Council have nothing to do. “ Will you please inform Captain McLennan that this matter must now be regarded as closed, and that the G.O.C. hopes that the reports upon him in future will be such that there will be no occasion to supersede him when vacancies again rise. (Sgd.) “T. H. Dodds, Colonel.”
– Section 5.4a and 55 of the Defence Act applies the Army Act with such modifications and adaptations as are prescribed and in so far. as it is not inconsistent with the Defence Act. ‘The Australian Military Regulations have always prescribed the procedure to be followed by a member of the Australian Military Forces to obtain redress of any grievance ; therefore such a matter, was not one which came within the jurisdiction of the Army Council. To make the position quite clear, a regulation was passed here in. 1918 to provide, in case of complaints, for a modification of section 42 of the Imperial Army Act to the following effect : - If an officer thinks himself wronged by his commanding officer, and, on due application made to him, does not receive the redress to which he may consider himself entitled, he may complain to any officer in chief command of Australian Military Forces beyond the limits of the Commonwealth, a general officer commanding the Military Forces in Australia, or the Military Board, as the circumstances of the case may render appropriate (instead of the Army Council), in order to obtain justice, who are hereby required to examine into such complaint, and if so required by the officer through the Minister (instead of a Secretary of State) make his or their report to the Governor-General (instead of His Majesty) in order to receive the directions of the Governor-General (instead of His Majesty) thereon.
asked the Minister for Repatriation, upon notice -
Can he state definitely or approximately when the suspension of building operations in Australia on War Service Homes will be removed ?
– The resumption of operations outside the completion of contracts already entered into will be contingent upon funds being made available.
Motion (by Senator Foll) agreed to -
That a return be supplied to the Senate covering all States - figuresfor each State to be supplied separately - showing -
number of houses completed and occupied by returned soldiers under the War Service Homes Act;
number in course of construction;
number completed but not taken up by soldiers in terms of War Service Homes Act.
In Committee (Consideration resumed from 29th April, vide page 7924) :
Clause 16 (Irregular appointments or enlistments) .
– If honorable senators will turn to the memorandum supplied to them showing the alterations proposed to be made in the principal Act by this Bill, they will see that the amendments proposed by this clause are largely of a drafting character. The introduction of the words “enlisted, registered, or controlled “ in section 42a of the principal Act is intended to bring compulsory trainees under the provisions of the section. The new sub-section proposed is intended to provide that a trainee irregularly registered shall not be entitled to be discharged because of the irregularity.
Clause agreed to.
Clause 17 (Citizen Forces to be returned to districts).
– This clauserepresents merely another drafting amendment rendered necessary by the adoption of the divisional organization. Under it the present military districts will be termed divisions.
Clause agreed to.
Clause 18 -
Section 55 of the principal Act is amended (a) by inserting therein after the words “ war service” the words “or on duty”; and (b) by adding at the end thereof the followingsubsections: - “ (2) A member of the Military Forces shall not be tried by court martial for an offence which is a civil offence within the meaning of the Army Act, and which is committed within the limits of the Commonwealth, when not on war service.” “ (3) The sentence for any offence against the Army Act committed when not on war service and notbeing a civil offence within the meaning of the Army Act, shall not include any punishment which, in the scales of punishment provided in that Act, is greater than imprisonment, and the term of imprisonment or detention imposedby the sentence shall not exceed three months.” “ (4) For the purpose of this section, a member of the Permanent Military Forces shall be deemed to be on duty at all times, and a member of the Citizen Military Forces shall be deemed to be on duty during the whole period of every continuous training which he attends, andat all times when in uniform, and in respect of every act done or omitted to be done by him whether in or out of uniform, in his military capacity, or with intentional referenceon his part to his military capacity.”
Section proposed tobe amended -
The Military Forces shall at all times, whilston war service, whether within or without the limits of the Commonwealth, be subject to the Army Act save so far as it is inconsistent with this Act, and subject to such modifications and adaptations as are prescribed, including’ the imposition of a fine not exceedingTwenty pounds for an offence either in addition to or in substitution for the punishment provided by the Army Act, and the increase or reduction of the amount of a fine provided by the Army Act:
Provided that the regulations shall not increase the fine for any offence so that it exceeds Twenty pounds.
.- This is the clause which proposes to apply the British Army Act to our Defence Act in time of peace, and I would suggest that those honorable senators who are opposed to the principle may, on it, give a direction which the Government will accept. If the Committee does not wish to apply the Army Act in peace time, they may negative this clause. There is no necessity to amend it, because if the Army Act is not to apply in peace time, the whole clause must go, and if that is done, the Government will take the vote as a direction that the Army Act is not to apply in peace time. We can then go through the remainder of the Bill and make the consequential amendments. Of course we shall take the division on this clause as final. That is to say, if the division is against the Government in Committee, it will be regarded as a direction to strike out the references in the remainder of the Bill by which the Army Act is applied in peace time.
I should like to say that the Bill is in no sense a party measure. The Government recognise that there is room for two opinions as to the wisdom or otherwise of applying the Army Act in peace time to our Defence Forces. Therefore the Government can take no exception, if the majority of the Committee is against them on this question. Personally, I shall not cavil at such a decision. I say this all the more readily because, as I told honorable senators on a previous occasion, 1 myself at first expressed doubt as to the wisdom of this provision, but I have been converted to the other view by what I regard as sound arguments in its favour. I therefore ask honorable senators to approach the discussion of this clause with an unbiased mind, and give the Government the benefit of their opinions. We shall be quite content to abide by the result. In consequence of the discussion last week I have gone into this question very carefully, and I find there is one factor which I did not mention before, and which I was not aware of until I came to look at the whole position again. I find that Australia is the only part of the British Empire that does not apply the British Army Act to the Defence Forces in peace time, and thatall those Dominions which apply it do so with certain qualifications as is proposed in this clause. The Canadian Militia Act, section 74, provides -
Majesty’s troops in Canada, and not inconsistent with this Act or. the regulations made thereunder, shall have force and effect as df they had been enacted by the Parliament of Canada for the government of the Militia.
Every officer and man of the Militia shall be subject to such Acts, regulations, and laws -
Officers and men of the Permanent Force and members of the Permanent Staff of the Militia shall at all times be subject to military law.
As the Committee will see, this is a very far-reaching provision. I come now to the New Zealand law on the subject. Section 15 of the New Zealand Act of 1912 states -
In time of peace the following persons shallbe subject to military law as established by the Army Act, save so far as that Act is inconsistent with the principal Act, or any amendment thereof, or with any regulations made thereunder: -
Section 16 says that the Territorial Forces are to be subject to it in active service, and section 17 provides -
I turn now to the Dominion which, of all others, one would have thought would have taken some exception to the application of the British Army Act in time of peace. I refer to the Union of South Africa, because the Government of the Union at all times has been more representative of the Dutch than of the British-speaking population. I find that section 95 of the Act of 1912 states - 95. (1) By virtue oE section 177 of the Army Act, the provisions of that Act shall apply in relation to the Defence Forces of the Union and to all officers, non-commissioned officers, and men thereof -
subject to such adaptations and modifications as the Governor-General may and is hereby authorized from time to time to make to the remaining provisions of the said Army Act and to the rules of procedure made under section70 thereof: Provided that in the modification or adaptation of those provisions and rules, the laws, usages, and practice in force or in vogue in ‘the Union and the authority of the Union Parliament and of the Governor-General shall prevail.
The provisions of the Military Code shall apply-
those mentioned in clauses (d), (e), (f), (g), (kk), (l), (m), and(n) of section 44 of that Code; or
SenatorFoster. - But they have not compulsory military training there?
– Yes, and in New Zealand, and in Canada also. The matters excluded, to show that they are not important, are as follows : -
Title; mode of bringing Act into force; divisions of the Act; billeting, and the impressment of carriages; power of the King to make articles of war; enlistment; assignment of pay and pensions; exemption of officers and soldiers from polls; officers not to bc sheriffs or mayors; exemption from serving on juries; Courts of summary jurisdiction; summary proceedings in Scotland; licences of canteens, and recreation rules; relations ‘between the regular and auxiliary Forces, Royal. Marine, and Indian Forces; prisons and prisoners on Ireland, and in the Channel Islands.
– Is there really anything left in the Army Act after those exemptions ?
– Yes. The provisions which have been excluded cover all the unimportant sections. The principal reason for which wo are applying the Army Act lies in its disciplinary code, and these exemptions do not touch upon that. All the three Dominions which I have indicated had applied the Army Act, before the war, to theirForces in time of peace, with practically the same modifications and exceptions as we now propose with respect to our application of the Act, in thiscountry, in time of peace.
– Is it not proposed to repeal the compulsory provisions in New Zealand?
– I have heard of no such proposition. I have recently had reports from the Defence Department of that Dominion, concerning the New Zealand Eorces, and they contained no suggestion of repeal. Last year the New Zealand authorities did not carry out the camps of training. Nor did we. Those camps were suspended, both, there and here. But in New Zealand they are proposing to resume the establishment of training camps on a limited scale,, just as we have done in the Commonwealth this year. Therefore the present proposal of the Government is by no means revolutionary. It obviously commended itself, before the war, to the ‘ judgment of the Parliaments of those three other self-governing Dominions, and the motive is clear ; it is the same as experience has now dictated to us. We found that when we organized and sent a fighting Force oversea our Defence Act applied the Army Act at a time of war. We had had our Forces here, in training, in time of peace, and our officers had had to administer the disciplinary code and to make themselves familiar with its provisions. When they went to war, however, they found themselves under the scope of an Act with the provisions of which they were unfamiliar. The result was that in the early years of the war there occurred considerable confusion and dislocation, and illegalities were actually committed by our officers entirely through lack of acquaintance with the disciplinary code which they were called upon to exercise. It waa only as they became familiar with the provisions and procedure of the Army Act that, in later years of the war, we were able to constitute courts martial, Composed wholly of Australian officers. In the earlier period’s there was a considerable outcry against the fact of the Australian Imperial Force courts martial nob being composed entirely of Australian officers. It was necessary to include officers who were familiar with the procedure and with the code itself; hence the necessity for appointing mixed courts martial .
There have been many misleading and erroneous statements made concerning the application of the Army Act to our Forces. Those criticisms will not be repeated in this Chamber, for, surely, honorable senators can debate the matter on its merits. It has been; stated, for example, that if we apply the Army Act to our Force we shall be applying all the punishments set out therein. That is not so, because it is specifically provided in our Defence Act that the Army Act shall apply only in so far as it is not inconsistent with. our Defence legislation.
– I desire to moye for an extension of time.
– Order ! The honorable senator, may not do that.
– The Minister may go on again now another honorable senator having spoken since he last addressed the Chair.
– Order ! The whole question of the interpretation of our Standing Orders arises at this juncture. Upon this same point I indicated, only the other evening, that I could not permit a ruling of the’ President which had overruled one that I had given, to be set aside in spirit. Therefore, while the intention of Senator Earle is laudable, I ask him to address himself to the clause with sufficient directness and sufficiently long to justify me - for I have to be the judge in this matter - in permitting the honorable senator who was previously addressing the Chair to resume his remarks.
– IntIn the spirit of impartiality which has been invoked by the Minister for Defence (Senator Pearce), I desire to raise an important point of order upon the clause under discussion. My point is that clause 18 is improperly before this Committee, since it provides for the incorporation in the Bill of the British Army Act, of which a fair copy is not before honorable senators, as required by standing order 186. I emphasize that my point of order is important, since a decision given upon it will very considerably affect the rights and privileges of honorable senators. I have been in Parliament for nearly four years, and I cannot recall that during that period any measure has been submitted which did not include every word which was intended to be placed upon the statute-book by the medium of such measure. Standing order 186 says -
The senator having leave, or one of the Committee appointed to bring in a Bill, shall present a fair copy thereof signed by him to the Senate at an early date.
Standing order 188 bears also upon this matter. It sets out -
Every Bill not prepared pursuant to the order of leave, or according to the miles and orders of the’ Senate, shall be ordered to J» withdrawn.
According to all precedent, and adjudged by the usage and customs of the Senate, a fair copy of every Bill which is placed before honorable senators should include everything intended to be therein ; and that cannot be overcome, I hold, by the quoting of titles, as in clause 18, with the omission of the actual words. I claim, in connexion with the privileges of the Senate, that every part, clause, and sub-clause should be placed before honorable senators. Otherwise we would surrender our right to control legislation. When a Bill in connexion with the wool control was brought before the Senate the whole of the regulations were included in the schedule and printed in the fair copy of the Bill. The same was done in connexion with the Anglo-Persian Oil Agreement Bill as the agreement between the company, and the Commonwealth was incorporated in the Bill.
– What about the first Defence Bill ?
– I am only referring to measures that have been introduced into the Senate during the time I have occupied a seat in this Chamber.
– There was a Parliament before then.
– There is a further point in connexion with litigation that might arise under any Act. In the Acts Interpretation Act of 1901 amongst the general provision we find these words: -
Every section of an Act shall have effect as a substantive enactment without introductory words.
That is one of the sections in an Act used in the interpretation of the laws we make, and this can certainly and correctly be read to mean that every section ‘of an Act shall have reality and carry the consequences of an enactment. This clause does nothing of the sort, because it incorporates “holus bolus” an Act which has been placed on the British statutebook by another Legislature. There is no copy of the British Army Act before the Senate. It is true that two copies of- the British Army Act of 1914 have been laid on the table of the Senate; but the Minister for Defence (Senator Pearce) has admitted in the course of the debate that the British Army Act is re-enacted annually, so the confusion is thereby increased, and it cannot be said that the British Army Act of 1914, which is re-enacted annually, is the legislation we propose placing upon our statute-book in 1921. Standing order 420 provides-
Each senator may of right require the question to be read by the Clerk for his information at any time during the debate, but not so as to interrupt a senator speaking.
Our Standing Orders have been designed to protect the rights of honorable senators, and to enable them to know exactly what they are doing and what they are voting on.
– The question is that the clause be adopted.
– I have quoted three or fourstanding orders which have been framed to insure that every “i” shall be dotted, and every “ t “ shall be crossed in the legislation placed before us. Regulations are made under Acts of Parliament which are often in themselves bad enough; but I have taken the point of order because I consider that this clause is irregularly before the Senate, inasmuch as it incorporates the British Army Act, a fair copy of which is not before us.
– On the point of order, I desire to say that if the guestion raised by Senator Pratten is sound, it is a pity that the honorable senator does not go back to the inception of Federation, because we have beencommitting this crime for a long time. I remind the Committee that when we introduced the first Defence Bill we incorporated the British Army Act so that it would apply in war time. I have a fairly good recollection of the Bill passing through Parliament, and I do not think the British Army Act was ever placed on the table. I am sure that it was not embodied in the Bill. I also direct attention to the fact that in many of our Acts we refer to sections in the Constitution and in our Acts Interpretation Act it is provided that where the Constitution is referred to the Constitution of the Commonwealth of Australia is intended. But we do not embody those particular sections in the Act.
– But we know what they are.
– Yes, by referring to the Constitution, and the same could be done with, the British Army Act.’
– But you have only a limited number of copies.
– That does not affect the legal position. The procedure is exactly the same, because the Constitution is an Act, not of this Parliament, but of the British Parliament. Notwithstanding this, we frequently refer in our legislation to certain sections of the Constitution, which we do not repeat.
– But it is incorporporated as the first of our Statutes.
– But it has never been passed by this Parliament. It is printed with our Statutes for the convenience of members of Parliament and others, but it is not an Act of this Parliament.
– It created this Parliament.
– It is frequently referred to, and the sections mentioned are not repeated in our Bills.
– Will the Minister give us an instance?
– If the honorable senator will refer to the Judiciary Act, he will find that certain sections of the Constitution are referred to. The Acta Interpretation Act, recognising that it was unnecessary to set out certain sections in full has provided that where the Constitution is referred to, the Constitution of the Commonwealth of Australia is intended. References to other Acts are frequently made in our Bills; but we do not incorporate the sections of such measures. I am sure honorable senators will see that if the point of order is upheld, it would be contrary to our practice in the past, and extremely inconvenient. Senator Pratten referred to standing order 186, which reads: -
The senator having leave, or one of the Committee appointed to bring in a Bill, shall present a fair copy thereof, signed by him, to the Senate at an early date.
Surely honorable senators cannot contend that this is not a fair copy of the Bill brought forward. Is the Bill in accord with the Order of Leave? I have obtained leave from the Senate to bring in a Bill to amend the Defence Act, and I have brought in the Bill, which is a fair print, and in accord with the Order of Leave..
– Will the Minister read standing order 188 ?
– Yes. It provides: -
Every Bill not prepared pursuant to the Order of Leave, or according to the Rules and Orders of the Senate, shall be ordered to be. withdrawn. (*
Surely this Bill is in accord with the Order of Leave, which was for a Bill to amend the Defence Act. This is all this Bill purports to do.
– To me ‘t is quite clear - whether in the past we followed the proper procedure or not - that if we incorporate the British Army Act, as is provided by this clause, we shall be adopting legislation, shall I say, that has been passed in Britain for centuries, and of which we have no fair copy before us. Even if it were desirable to legislate without a fair copy of what we are legislating upon, I believe our Standing Orders prevent honorable senators being placed in the position of passing something which is not before them. The procedure of Parliament is such that we are responsible for what we pass, and everything should be before us so that we can consider it as we go along. There is no comparison between a reference to a British Act of Parliament for the administration of the British Army and our own Constitution Act. Our Constitution Act- was passed by the State Legislatures before this Parliament came into existence, and it became part and parcel of the legislation of this Parliament through the Parliament being created under it.
– The Constitution is an Imperial Act.
– There is no analogy between the two things. The Minister for Defence is proposing by the clause before the Committee to submit to Parliament the British Army Act and make it a law of the Australian Parliament. He has supplied honorable senators with no copy of the British Army Act. In the circumstances I con- , sider that . Senator Pratten has good grounds for the point of order he has. raised.
– We can only discuss the question whether the Standing .Orders have been complied with or not. Those which govern this matter were passed with a view to prevent Bills being introduced into the Senate in an irregular manner. The Minister, under the Standing Orders, having been given leave to introduce the Bill, must provide a fair copy of it. We have before us a fair copy of the Bill which the Minister was given leave to introduce. The question whether the Bill contains references to Acts, whether of the Commonwealth or the Imperial Parliament, does not affect the point of order. The standing orders quoted by Senator Pratten do not appear to me to support his contention. The honorable senator must show clearly that the Minister for Defence has not complied with the procedure laid’ down by those standing orders. I am satisfied that that procedure has been observed in every particular.
– If Senator Pratten’s contention were correct, apparently one fair copy of the Bill would be. sufficient.
– If honorable senators will turn to their file of Bills, they will find that there is scarcely a Bill on the file in which there is not some reference to Acts of Parliament. In my opinion, Senator Pratten has entirely failed to show that standing order 186 has not been complied with. I cannot understand how any honorable senator can suggest that the standing order requiring the introducer of a Bill to present a fair copy of it means that a fair copy of everything referred to in the Bill should be placed before the Senate.
– Senator Pratten” has raised a very interesting point, and it seems to me that there is something in it. The Standing Orders were undoubtedly framed with a view to giving honorable senators an opportunity of knowing everything they were asked to deal with. The best test of the point of order is not a reference to the Army Act. I ask honorable senators to consider what would be the position if, in the Bill before the Committee, the reference was to the Army Act of Japan. If the Bill contained such a reference, do honorable senators think that the Standing Orders would have been complied with?
– It might be a good ground for rejecting the clause.
– The object of the Standing Orders is to have placed before honorable senators the full facts with which they are asked to deal, so that they may thoroughly understand any proposed legislation. Some of us are familiar with the provisions of the British Army Act, and I suggest that a truer test of the force of the point of order raised would be to ask whether the Minister for Defence (Senator Pearce) would have complied with the requirements of the Standing Orders if in the Bill now before us there was a reference to the Army Act of Japan, instead of the Army Act of Great Britain. I submit that he would not.
– I amof the same opinion as Senator DrakeBrockman. The point of order should not be considered merely with regard to the proposed inclusion of the Army Act in the Bill,I remind honorable senators that, in the Air Defence Bill, which is also before the Senate, there is a proposal to incorporate, in the same way as the Army Act is incorporated in the clause under consideration, another Imperial Act, with which, I venture to say, no member of the Committee is familiar. No doubt our Standing Orders have been framed upon the lines of the Standing Orders of the House of Commons, and I should like to inform honorable senators of the way in which the Air Forces Act of 1917 of the Imperial Parliament deals with the incorporation of the Army Act. The provision is stated in this way -
The Army Act, as in force immediately before the passing of this Act-
The proposal to incorporate the Army Act in the Bill before the Committee goes very much further than that. It provides for the incorporation of the Army Act, or any substitution of it or amendment of it which may be passed in the future. The provision of the Imperial Air Force Act proceeds - shall, subject to the modifications set out in the schedule of this Act and further amendments required to adapt that Act to the circumstances of the Air Force, apply with respect to the Air Force, and shall, as so modified, take effect as a separate Act of the present session of Parliament, and may be printed by His Majesty’s printer as a separate Act intituled an Act to provide for the management and discipline of the Air Force.
And so on. That is the way in which the British Parliament dealt with the incorporation of the Army Act in another measure. It was printed in connexion with the Air Force. Act, so that members of Parliament might be familiar with what they were doing. I think that that should be done here, if we are to comply with the procedure provided for by the Standing Orders.
– I believe that the last two honorable senators who have spoken have taken a wrong view of the matter. I have had some fifteen years’ parliamentary experience, and although, on the spur of the moment, I could not direct attention to any particular instance, I know that it is quite a common thing for Acts of Parliament to be proposed to be incorporated in Bills without having their provisions actually set out in those Bills. The arguments used in support of the point of order might be strong arguments against the passing of the clause. I, personally, intend to vote against the clause; but I say that to interpret the Standing Orders in the way suggested by Senator Pratten would involve a considerable amount of unnecessary printing and expenditure, possibly, in connexion with Bills that would subsequently be rejected.
– In connexion with the Bill now before the Committee, the Minister has adopted that course in respect of amendments proposed in the existing Defence Act.
– If this Bill is passed the amendments of the existing Act for which it provides will be included in any future print of the Defence Act. I believe that, under the Standing Orders, it is not necessary for the Minister to go to the expense and trouble of supplying honorable senators with copies of the various sections of the Army Act. I admit that a proposal to incorporate in any Bill the provisions of any Act of Parliament should be very clear before I would be prepared to vote for them. Certainly the British Army Act isnot sufficiently clear to me to warrant me in voting for the clause which, if passed, would embody that Act in our Defence Act. I see nothing in the Standing Orders which would prevent the introduction of a Bill containing clauses for the incorporation of an Act of Parliament without a copy of the provisions of the Act proposed to be incorporated being therein set out.
– Does the honorable senator think that it is right that we should be asked to incorporate an Act which we know nothing about?
– I do not; and as I have said, I intend to vote against the clause. If the honorable senator knows nothing about the Army Act, he may consistently oppose the clause. If honorable senators have an opportunity to make themselves familiar with the provisions of the Army Act, it is their duty to do so in order that they may record an intelligent vote. If the ruling of the Chair is against the point of order raised, and it is challenged, I shall support the ruling. I do not like to see theLegislature bound down, shall I say, by red tape.
– Then why have Standing Orders at all?
– They are necessary for the guidance of honorable senators in the. conduct of business.
– And we are acting in accordance with them.
– I believe that we are. Wo should not place such an interpretation upon them as would forbid us taking action which it would be very useful and convenient to take on some future occasion.
– I differ from my two learned colleagues who have already expressed their opinions on the point of order. It might help the Committee to arrive at a decision if I put the matter in this way : Suppose a Bill were introduced to amend our Sedition Act, in which it was proposed to place on an index expurgatorius a number of books coming into the Commonwealth set out by their titles, could it be held for a moment that, in that measure, we should include fair copies of all the books placed on the index? That could never be held to be the intention of the standing order.
– But persons may be punished under the Army Act supposed to be incorporated in the Bill before the Senate.
– No one would contend that the Government should go to the expense of printing copies of all the books referred to in order that the members of the Senate might be made acquainted’ with their contents. It seems to me that the Minister has complied with, all that is required by the Standing Orders.
– I think the whole question revolves around the meaning of the words “ fair copy.” How can it be said that this is a “ fair copy” of the Bill when we are asked to read something into it . that is not there ? Can it be said that this is a “ fair copy” of the British Army Act, which is only dealt with in three words, and when we know that the Army Act is a measure comprising 600 or 700 pages? I maintain that it is not, and that the standing order is not being complied with.
– I do not agree with Senator Benny. This ‘is not simply a “Bill for an Act.” It is a Bill incorporating an Act, a copy of which we have not before us. Senator Benny quotes the case of certain action, to prevent the introduction of, say, undesirable books, as an illustration in favour of his point of view. But if any Minister or honorable senator took action in that direction, I presume he would read certain portions of such books as a reason why they should be excluded. The Minister has not read the British Army Act, or given us reasons why it should be incorporated in this measure. The two things are entirely different, and therefore they are not the same. This Bill is not a fair copy of what it purports to be. It is described as “ a Bill for an Act,” but it is not a Bill for the Act that is to be brought into force at all, and until we have a fair copy of that Act I think the point of order ought to be sustained.
– I am against the honorable senator who raised the point of order, because I think the Bill complies absolutely with standing order No. 186-
The senator having leave, or one of the Committee appointed to bring in a Bill, shall present a fair copy thereof, signed by him, to the Senate at an early date.
I think this is’ a fair copy, a fair print of the Bill, and it contains provisions having reference to the British Army Act.
– Incorporation, not reference.
– Well, let us say it incorporates the British Army Act. The Army Act is denned in the Defence Act.
– And incorporated.
– The mere fact that an Act is incorporated in a Bill does not make it necessary that the Act itself shall be printed in that Bill. Day after day in the State Parliaments, and often in the Federal Parliament, we have done the same thing. If honorable senators refer to State Acts, they will find frequently a section stating - “ This Act is to be read and construed with,” let us say, the Lands Clauses Consolidation Act. The whole of the provisions of a Lands Clauses Consolidation Act are not then set cut in that particular Act.
– But that would be an Act of the same Parliament.
– It does not matter. The British Army Act is a public document just as an Act of this Parliament is a public document.
– So is the United States Currency Bill.
– It does not matter. The British Army Act is a public document, and reference is made to it. Sometimes for convenience in ‘ discussion, to a Bill is added a schedule setting out some particular measure or sets of regulations or documents referred to in’ the main measure. But this is not always essential. I consider this Bill is a fair copy. It simply affirms that the Army Act of Great Britain shall be incorporated. It is open to any honorable senator to criticise the method of presenting the Bill.
– As a matter of fact, the Army Act is already incorporated by section 55 of the principal Act, but it does not apply in peace time.
– I am not speaking as to that. I am speaking as to the particular Bill before us. It makes reference to another Act or document which is accessible, and I contend that the standing order does not require the whole context of that particular Act to be included in. the Bill itself. The Bill affirms that the Army Act ia to be incorporated, and it is competent for honorable senators to refer to that Act.
– How can we refer to it when it is not here ?
– If we desire -copies of the Act we can ask for them, and if the Government refuses to give copies the matter of redress is in the hands of the Chamber. I am. not dealing with the merits of the proposal itself. I am only addressing myself to the point of order aa to whether the Bill is or is not in compliance with the standing order referred to. I am not debating the propriety or otherwise of incorporating the Army Act. I am keeping to the point of order that has been raised, that the Bill in its present form does not comply with standing order 186. In my opinion it does, and with all respect I submit that there is nothing in the point of order that has been raised by Senator Pratten.
– Before I give my ruling, I want to make reference to two matters in order that the position may be clear to honorable senators. A dayor two ago, while the Bill was in Committee, Senator Pratten courteously supplied me with a written intimation that he was going to take this point of order. While I, as Chairman, fully appreciate the courtesy o’f any honorable senator who gives me such an intimation, thus facilitating search as to any point of order that has been raised, I want honorable senators to fully understand that if they care to exercise this courtesy towards the Chair it is not to be regarded as imolying that the Chairman should, of his own volition, call upon the honorable senator who has given such intimation to make his point of order. The responsibility must always rest uponthe honorable senator himself, notwithstanding his act of courtesy to the Chair to do this at the right time and at the right* place’. So much for that.
In regard to the discussion, as this relates to a very important matter, I have permitted honorable senators to express themselves fully upon it. They will understand that it is a question upon which the Chairman can at any time intervene and cut short the discussion. The honorable senator taking the point of order must be heard: but there is no question before the Committee on a point of order being raised that permits a general discussion on. the point of order as a right. Senator Pratten has taken a point of order on the language of standing order 186. I do not think the interpretation of the standing order referred to in regard to its verbiage justifies his contention that the Bill is not in form . Standing Order 186 reads -
The senator having leave, or one of the Committee appointed to bring in a Bill, shall present a fair copy thereof, signed by him, to the Senate at an early date.
What does “ thereof “ refer to? It refers to a fair copy of the Bill. If the Bill is nob submitted clearly, that is to say, if it is so badly printed as to be unreadable, there would be a contravention of the standing order, and the point taken by Senator Pratten could be raised. If, in the judgment of the Chairman, the standing order had not been properly complied with in that sense, the point of order would be sustained. But I do not think the language of standing order 186 bears out the honorable senator’s contention. The practice of Parliament in regard to a Bill introduced incorporating an Act of Parliament is not to require the text of the Act in question to be embodied in the Bill. . Por instance, the Income Tax Act, No. 37 of 1916, is described as-“ an Act to impose taxes upon incomes,” and! it contains a section -
The Income Tax Assessment Act 1915-16 shall be incorporated and read as one with this Act.
But the text of the Act of 1915-16 was not included in the Income Tax Bill when it was circulated and became an Act. Then we have the Entertainments Tax Act, No. 38 of 1916. It is described as ‘ ‘ an Act to impose a tax upon payments for admission to entertainments “; and one section reads -
The Entertainments Tax Assessment Act 1916 shall be incorporated and read as one with this Act.
But here, again, the text of the Entertainments Tax Assessment Act is not included in the Entertainments Tax Act. The language of the standing order does not justify me in making any variation in regard to this matter. There is something much more recent than the Act I have quoted, and it is certainly applicable to the very question upon which the point of order has been taken.
In section 54a of the DefenceAct 1903- 18, there is reference to the British Army Act as follows: - 54a. (1) Members of the Military Forces -
Forces outside Australia; or
on their way back to Australia after so serving; shall be subject to the Army Act as if they were part of the Regular Forces, with such modifications and adaptations as are prescribed.
The Army Act is directly referred to, and incorporated in regard to war service in the Defence Act that is already on our statute-books, and the internal evidence does not support the contention that the British Army Act was included in the text of the measure when it was submitted to Parliament. It would be too much to expect me to reverse the practice and procedure of this Parliament - a procedure adopted with the full and careful cognisance of my predecessors - and to insist upon everything referred to in a Bill being printed in full in that measure. Let me give the Committee an illustration. We will say that a measure introduced to this Chamber made reference to solar time. Would it be necessary to print in full the somewhat abstruse, astronomical, and mathematical calculations required to de-, monstrate what solar time is? I should say not; therefore, having regard to our practice, and in view of al! the. circumstances, I must rule that the point of order taken- by Senator Pratten c;innot be sustained.
– I desire to deal briefly, further, with the merits of clause 18. Many erroneous statements have been made, among which is the one that the death penalty, as provided .in the British Army Act, for certain offences - such, for example, as desertion - will, if that Act is embodied in our Statute, apply to the Australian Military Forces. That is absolutely incorrect. ‘ The person making such a comment is not only open to the charge of not having read the Army Act, but of not having examined our own Defence Act. In the latter, there is clearly set out what the punishment for desertion shall be; and it is not punishment by death. The Army Act is only applicable in so far as it does not come> into conflict with our Defence Act. Neither is it a fact that the Army Act will apply in time of peace in respect of any offence which can be tried by the civil Courts of the Commonwealth. An attempt has been made, particularly in Sydney, to have it appear that the Army Act is to take the place of our civil Courts of criminal jurisdiction, and is to he applied to our Military Forces in place of the civil law. This very clause demonstrates that that is not so. Sub-clauses 2 and 3 state -
A member of the Military Forces shall not be tried by court martial for an offence which is a civil offence within the meaning of the Army Act, and which is committed within the limits of the Commonwealth, when not on war service.
The sentence for any offence against the Army Act committed when not on war service and not being a civil offence within the meaning of the Army Act, shall not include any punishment which, in the scales of punishment provided in that Act, is greater than imprisonment, and the term of imprisonment or detention imposed by ‘the sentence shall not exceed three months.
The amending clause in the Bill not only does not enable sentences of death or field punishment to be passed by court martial in peace time,, but the very same clause provides that the maximum sentence which can be .awarded by court martial when the offender is not on war service shall not exceed three months’ imprisonment, and this is the maximum already provided in the Defence Act. The Defence Act also provides for offences against discipline by trainees compulsorily serving in peace time being dealt with by civil Courts of summary jurisdiction. Therefore, in so far as the Army Act is inconsistent with that, no offence of that class committed by a trainee can be punishable by the procedure laid down, under the Army Act.
With respect to the death sentence, that, cannot be imposed by a court martial upon a soldier serving in the Military Forces of. the Commonwealth, except for mutiny, desertion to the enemy, or treachery. It will be seen, that two of those offences, at .any rate, can only be committed in time of war.
– Even a deputation of the rank and file to their officers amounts to mutiny.
– Not to the form of mutiny punishable by death. I am sure the honorable senator is too fair a judge of his fellow Australians to -believe or expect that ..any Court in Australia would punish by sentence of death a form of mutiny such as was indicated in his interjection. Technically, such an offence may amount to mutiny; but death is the highest penalty which may be imposed, and the Court would have regard to the circumstances of the particular offence.The Court is not compelled to punish by death a mere technical breach. There is a special section dealing with this matter, in our ‘Act. ‘. ‘ ‘ ‘
A well-known example of the power of modification or exception is the section in the Act which provides - as I have just pointed out - that the death sentence cannot he passed by a court martial on a soldier serving in the Australian Military Forces except for the offences of mutiny, desertion to the enemy, or treachery. This is one of the sections in the Act which it is proposed to amend by providing that the offence of murder shall be an offence to which the prohibition shall not apply. The present position, by reason of the section as it now stands; is that the offence of murder committed in a country outside the jurisdiction of British civil Courts cannot be punished by death. As regards the application of the offences in the Army Act to the Military Forces in peace time, these offences already apply, for the offences against the Army Act have always been embodied in the regulations where they are made offences punishable by court martial in peace time by the maximum punishment of three months’ imprisonment - the maximum which the Bill proposes to apply to the same offences contained in the Army Act. It will be seen that the change proposed in the Bill, of applying the Army Act in peace time, in regard to courts martial, is a change in form only and not in substance. I have .an extract before me which may be of interest. It is taken from the report of the Committee appointed in England in 1919 to inquire into the working of courts martial in peace and war. In addition to military officers, the personnel of the Committee comprised a number of members of Parliament, including the Eight Honorable Lord Hugh Cecil and Mr. Horatio Bottomley. The Committee came to the conclusion that -
Having regard to all the circumstances, the work of courts martial during the war has been well done. We are satisfied, not only that members of courts martial intend to bc absolutely fair to those who come before them, but also that the rank and file have confidence in their fairness.
A well-known Australian solicitor also, who during the war frequently acted as counsel for soldiers tried by court martial, made the following comments in a letter to the press: -
Speaking generally - I say, unhesitatingly - I know of no legal procedure for trial of accused persons where the wisdom of the maxim audi alteram partem is more carefully recognised and enforced than in courts martial. Let me, in conclusion, unequivocally and strenuously deny the allegation that courts martial have been guilty of unjust findings.
It is this procedure and system which the Bill proposes to apply to the Military Forces in peace. The code of the Army Act which has stood the test of time has been acknowledged as outstanding for its completeness and fairness to accused persons. An attempt has been made to embody its provisions in our regulations; but it is obvious that if the Military Forces change from one code to the other when peace or war begins ann. end3, there must arise confusion. Emphasis is laid on the fact that the proposed application of the Army Act to the Military Forces in peace time does not enlarge the present powers of courts martial to inflict in peace any greater punishment than three months’ imprisonment, nor to award in peace any sentence of field punishment.
I have shown that there can be nothing offensive to our sense of Australian fair play and justice in what is in this clause provided; and: I ask honorable senators, therefore, to give calm and unimpassioned consideration to its merits, and to assist the Government with the benefit of their judgment. If, however, the Committee does not accept the view of the Government, we shall bow to its decision and proceed to make the requisite alterations in” the remainder of the Bill, and then to bring it forward for reconsideration, in order that the rest of the measure may be dealt with. If the majority of honorable senators support the Government - and I ardently hope they will do so - we shall have a code which has stood the test of time, which is effective, easy in its working, and, altogether, a well-regulated code. If the decision is against the Government, we shall have to separate our defence legislation in so far as concerns the legislative -provisions therein, and we shall be compelled to draw up a Military Discipline Bill, which will be practically a replica of the Army Act. That course will become necessary, because the present system of embodying in one Statute our policy of defence, and the disciplinary code also is certainly con- fusing, and does not tend reasonably to permit officers to secure a grasp of the military law. If the decision of a majority in this Committee is against the
Government I shall take it that this is the line along which honorable senators prefer that the Government shall then proceed. It has been suggested that the Bill be withdrawn. I cannot agree to that, because, altogether apart from the matters embraced in clause 18, there are many important things in the measure which the Government desire to embody in our defence laws at the earliest possible moment.
– I have received an amendment from Senator Pratten, in regard to which I would point , out that, while it might have been legitimately submitted on the first or second reading stages of the Bill, . I cannot accept it in Committee. My reason is that it is much too general in character. The Standing Orders enjoin on me the duty of submitting the clauses one by one, and in their proper sequence. The acceptance of the honorable senator’s amendment would be altogether irregular in that it would interfere with the language of, and very substantially amend, certain of the clauses before I had actually reached them in order to put them to the Committee. I would point out, however, that the point embraced in the honorable senator’s amendment can be decided by taking a vote upon the clause under discussion.
– In view of your ruling, sir - which I do not wish to question - I do not desire to press my amendment, although its framing could have been altered to meet the special exigencies created by this clause. I now propose to move another amendment.
– Why not negative the clause?
– I move-
That the words “ or onduty “ in paragraph (a), be left out.
This will, in effect, place the Australian Military Forces in time of peace in exactly the same position as at present, so far as concerns the incorporation of the British Army Act. The Minister for Defence (Senator Pearce) will realize that the Committee is in the humour to fairly and temperately deal with the position with which it is now faced. I am not prepared, as one who strenuously objects to the holus bolus incorporation of the Army Act in this clause, to take a division straight out upon it. If that course were adopted and the clause were agreed to - perhaps, by only a narrow majority - all further power and opportunity to discuss the Army Act would be lost. In view of the public importance of the whole matter, honorable senators should take the consideration of this clause step by step. I had already endeavoured to do that by raising the point of order upon which, sir, you ruled against me. I have no desire to object to your ruling, Mr. Chairman, but the amendment I desired to move was that all reference to the British Army Act be omitted from this clause. The amendment I now move will in effect, prevent the application of the British Army Act to our Citizen Forces in time of peace. During the second-reading debate, the Minister for Defence (Senator Pearce) plainly told us that at first he hesitated to apply the British Army Act. He also said that the training aimed at in connexion with our Cadet Forces was to develop the physical and moral qualities of the Cadets, and that it was only in the last year that Cadet training was of a military character. That is one of the reasons why I wish to exclude the British Army Act from the. Bill, in order to prevent the inclusion of the Cadets under the provisions of that Act. On the Minister’s own showing, it is only during the last year that training of a military character is undertaken, and the effect of the clause, as drafted, will be to bring every youth or boy in the country under it. We are told by the Minister for Defence that the Permanent Forces number about 2,000, and that the Citizen Forces” will number from 60,000 to 80,000. The British Army Act may have been excellent in the time of Queen Anne, or during the Napoleonic regime, or even during the recent great war.
– Cadets will not come under the Army Act, as they are not on active service.
– To show that the British Army Act was designed for a regular army, which had to be disciplined, I shall read, for the information of the Committee, a portion of the preamble of the Army Act of 1913.
– Are we incorporating that?
– We are incorporating the whole of it. A portion of the preamble reads -
And whereas no man oan be forejudged of life or limb, or subjected in time of peace to any kind of punishment within this realm, by martial law, or in any other manner than by the judgment of his peers and according to the known and established laws of this realm; yet nevertheless, it being requisite, for the retaining of all the aforementioned Forces, and other persons subject to military law, in their duty, that an exact discipline be observed,
I desire honorable senators to follow closely the concluding portion, which reads - and that persons belonging to the said Forces who mutiny or stir up sedition, or desert His Majesty’s service, or are guilty of crimes and offences to the prejudice of good order and military discipline, be brought to a more exemplary and speedy punishment than the usual form of the law will allow.
– Does the honorable senator not approve of that?
– So far as I have been able to ascertain, the Act is full of old military ideas, some of which are of crushing severity. Section 40 of the British Act reads -
Every person subject to military law who commits any of the following offences, that is to say, is guilty of any act, conduct, disorder, or neglect, to the prejudice of good order and military discipline, shall, on conviction by court martial, be liable, if an officer, to be cashiered, or to suffer such less punishment as is in this Act mentioned; and if a soldier, to suffer imprisonment, or such less punishment as is in this Act mentioned.
That is a drag-net provision that may include anything the military authorities may desire. Section 41 sets out the offences punishable by ordinary law, and, apart from those particular offences, all other offences against military discipline are punishable by military law. But this has been properly qualified by the Minister in this Bill by making amaximum term of three months’ imprisonment.
– Offences tried by civil Court.
– Up to three months can be imposed by the Military authorities for certain offences. On page 537 of this marvellous Manual of Military Law, it is provided that those about to enter upon service shall be informed that they will be subject to military law, and will have an opportunity of abstaining from entering upon service should they object.
– That does not apply in Australia.
– It is applied by this Bill, and there is nothing in the Defence Act in contravention.
– If they refuse to serve, that is a civil offence.
– The point I am making is that this provides that every man, when entering the Military Service, shall be informed that he will be subject to military law; and if he objects, he will have the opportunity of abstaining from entering the Service. On the face of it, it seems that some citizens objecting to military law, when once they heard of it, objected to serve and an opportunity was provided for them to back out.
– If that applied, our compulsory training system would go by the board.
– But it does not apply, because it is inconsistent with our Defence Act.
– In the schedule of this Act there are twenty-seven pages of short specimen charge-sheets for breaches of military discipline, and there is an average of five on each page. As has already been pointed out to the Committee, it is possible to make ridiculous regulations in regard to saluting; and if two men were to appeal, or attempt to lodge an appeal, they could be charged with mutiny. I am not quite clear as to the application in peace time of No. 1 field punishment. I trust it cannot be ap plied, but it is an obligation in war time, and was objected to by our soldiers during the recent war. A penalty could be inflicted by those outside the Commonwealth.
– For what offence?
– For a capital offence.
– Not for desertion.
– So far as I have been able to ascertain from reliable members of the Australian Imperial Force the proposals of the Minister are objectionable. This Parliament will also be placing power in the hands of the House of Commons, which canframe regulations which will automatically become law in the Commonwealth. The Army Act, as pointed out by Senator Elliott, throws aside appeals, and it is unthinkable that this Committee will adopt anything that interferes with the legislative powers of this Parliament. It seems that all military discipline is often largely a contest of officers versus privates, and the officers have to be obeyed.
– It is very often for the protection of privates against privates.
– Very well, perhaps we shall get more light on that phase of the question. The officers’ orders have to be obeyed, and they would be just as binding in time of peace as instructions issued when facing the enemy. The military policy of the Commonwealth is in a state of flux. Our international relationships are very indefinite, and the Minister for Defence has intimated to the Committee that if it is their intention not to incorporate the whole of the Act at this juncture, he will bring down in due course two separate military codes - one in connexion with legislation and one in relation to discipline. In view of all the arguments that have been adduced and “-the real position as we find it to-day, that is the best course to follow. I trust that the Committee at this juncture will not embody all the provisions of the British Army Act, which do not conflict with the present Defence legislation relating to- our Citizen Forces in this Bill. That is what is intended, and, so far as I am concerned, I shall want to know a good deal more before I shall be prepared to allow some of these objectionable provisions to pass.
– I am glad that we have had a discussion on this matter; but I do not know if, as a member of the Opposition, I shall be able to support the proposal. In moving, around, as I am compelled to, I am frequently approached by men who have been to the Front, who have urged me to do all in my power to prevent the British Army Act being embodied in our legislation. There is a widespread feeling of opposition amongst the rank and file, and generally men strongly object to being spread-eagled in the sun and compelled to stretch their limbs firs’t one way and then the other. They know that if this becomes law, and they fail to comply with military orders, they can immediately be punished under the stringent provisions of the British Army Act. In this country, which is a peculiarly free Democracy, we should avoid anything that has even a shade of unpopularity, because if we are to maintain our Defence Forces we must make the Service as popular as possible. If one can judge by the opinions expressed by men on trains, trains, or in the street it is not difficult to assume that there is a good deal of opposition to the proposal of the Government.
The Minister has assured us that by incorporating the Army Act we shall be following the safe footsteps of South Africa, and the excellent example of New Zealand. Australia can well afford to follow those countries when they are right, but they have not yet shown themselves to be such leaders of thought that we should adopt a system merely because they have adopted it. My chief objection to the incorporation of the Army Act is that there is not one member of the Committee, and I include the ‘Minister for Defence (Senator Pearce) who knows just what the Army Act contains. I have had an old copy of the Act in my possession for some weeks, and have tried to make myself acquainted with its provisions, t found, from the answer given by the Minister for Defence to the question I put, that the Army Act is not a permanent Act in Great Britain itself. The people of Great Britain have such a repugnance, shall I say, to the idea of a standing army that the British Army exists for only twelve months at a time.
– That is not the reason for the Annual Army Act. It has to do with the prerogative of the King.
- Senator Foster has very obligingly supplied me with a reference to the point I am making. I find, on page 14 of the Manual of Military Law for 1914, the statement made -
The Army Act has of itself no force, but’ requires to be brought into operation annually by an Act of the Parliament, generally known as the Army Annual Act. This is to secure the constitutional principle of the control of Parliament over the discipline requisite for the government of the Army. These annual Acts afford opportunities for amending the Army Act, of which considerable use has been made.
– We have no proposal of that kind here.
– I have said that in Great Britain there is a strong repugnance to a standing army. The people there have suffered from its dangers, and we may suffer here from the dangers of a permanent army. I should prefer the British system requiring the annual passage of an Army Act, so that if any one became desperate, as our own Prime Minister (Mr. Hughes) might become at any moment, and took possession of the Army, after twelve months its use would be illegal, because it would require to be renewed by an Act of the Parliament. I am a great believer in Parliamentary control of the ‘Army. The Government are proposing the incorpora-, tion of an Imperial Act with the provisions of which honorable senators are not familiar.
– They are proposing that an Act which is not permanently in force in England shall be permanently in force here.
– That is so, and they go further, and propose to give effect here automatically to any amendments of the Army Act, which may from time to time be made in Great Britain. The Minister for Defence told us that he was not inclined to accept the proposed application of the Army Act to our Forces, but has convinced himself that it would be advantageous to do so. We know how thoroughly the honorable senator goes into these matters, and he should give other members of the Senate time to convince themselves that it would be advantageous to apply the Army Act to our Forces, before he takes ‘this Bill any further. If the Minister finds that a considerable section of the party supporting him is inclined to swallow the British Army Act merely because he has submitted this Bill-
– I say quite frankly that unless the Government can carry this clause with a fair majority, I shall drop the proposal.
– That is a very fair statement, and I am very pleased that the Minister should deal with the Bill in such a manner. It is not a question of humiliating the Government. If there is a feeling of dissatisfaction with the proposal amongst the followers of the Government in the Senate, it is safe to say that in another place dissatisfaction with it will be expressed. The Minister’s statement that he will be guided by the votes of honorable senators is satisfactory, but I hope that, if he succeeds in having the clause passed, we shall have an opportunity to consider the Army Act section by section. I might commence by proposing that sections 1, 2, 3, 4, and 5 of the Act should be excluded, and Senator Duncan might later take up sections 7, 8, 9, and 10, so that eventually the whole of the provisions of the Army Act would be brought before the Committee, I welcome the amiable frame of mind which the Minister for Defence has displayed, and I shall do nothing to prevent the Committee going to a division on the proposal quickly. I hope that the result of the division, will save the Minister a large amount of trouble in endeavouring to put through the Senate a measure to link us up with the provisions of the Army Act, about which we know so little. I have heard honorable senators claim that it is one cf the finest pieces of legislation it is possible to produce. It may be an excellent piece of legislation for the British Standing Army. It exists for only twelve months, and must be called into existence each year by an annual Act of the Imperial Parliament. It may contain the Wisdom of centuries, hut I venture to say that it contains the wisdom of men who have been accustomed to dealing with other Men as if they comprised two distinct passes. Half the training of the British officer is directed to the training of the rank and file as pieces of machinery to be used at the will and pleasure of the officers. The whole training of the Australian Army must be the training of men who claim equal rights.
– We should have a poor Army if hey aid.
– I have read that just as high military authorities as Senator Cox have said that the Australian soldier, with his contempt, shall I say, for the appearance of discipline, became a better soldier the nearer he got to the fighting line.
– I quite agree with the honorable senator. He submitted to discipline then.
– There are two distinct forms of discipline. There is the discipline of the British Army, which would enforce upon the private a sense of his inferiority, and the superior discipline of the Australian, who, no matter what his position in the Army may he, asserts his right as the equal of any other man.
– He was one of the best disciplined soldiers in Europe.
– I have said that the nearer he got to the fighting line the better the soldier he became. I do not believe that any one who has read anything of the history of militarism will deny that it has always been the military idea that the officer is altogether superior to the man.
– Nearly every officer we had in the Australian Army had been a trooper or a private.
SenatorGARDINER. - I suppose that accounts for the mighty success of our Army. The officers came from the commonsense section.
– Then what is the honorable senator talking about?
– I am talking of the English proposal to incorporate in our Defence Act’ a system which is essentially British. I have read letters from young officers going through schools of instruction in which they said that care was taken to make them adopt outwardly the English method and the English manner - the swagger, shall I say, of the English officer.
– What is wrong with it?
– I am sure that Senator Bolton can see nothing wrong with it. But the fact remains that it is impossible to make a real Australian adapt himselfto it.
– And we do not want to make him do so.
– As Senator Foster very properly says, we do not want to make him do so. .
-brockman. - And we never tried to do so, even when we were operating under the Army Act.
– There is evidently something in the Army Act which the Government desire to incorporate in our Defence Act, and about which they are not prepared to enlighten us. They propose to make our Forces swallow a system which is largely repugnant to them.
– Three-fourths of our soldiers have never served under any but the Army. Act.
– And they are the very men who complain most about it.
– The freedom and independence which the honorable senator says they asserted was asserted under the operation of the Army Act.
– At the risk of becourtmartialed.
– I know that on the arrival of soldiers in Melbourne there was occasionally a kind of demonstration made with a view to securing some concession, and the officer in charge informed the men that they were guilty of mutiny, and that the penalty, if they persisted, was death. I remember that when some lads arrived in Melbourne from Sydney, some stupid officer decided that these men who were leaving Australia, and were taking their lives in their hands, should not be allowed to land in Melbourne. They asserted their right, and took a walk around the streets of Melbourne, and the next day they were brought up on the charge of mutiny, and many were punished. Some were put out of the Army, and sent back to the State from which they came. When men are placed in positions over other men there is always a certain class who will hold that it is necessary to keep others in a subservient position in order to get the best out of them. But the results of our soldiering show that that is not the way in which to get the best out of men.
– The honorable senator’s time has expired.
– I regret that the Senate has such little common sense as not to permit an honorable senator to address himself intelligently to a question.
– The point made by Senator Gardiner with respect to the Army Act should be stressed. The Army Act itself has no force, but is brought into the law by an annual Act passed by the Imperial Parliament. The proposal that we should adopt the Army Act in toto with any prospective amendments that may be made during the ensuing twelve months is one that does not commend itself to me. The Minister for Defence (Senator Pearce) admitted this afternoon that, as far as the Army Act was concerned it was practically impossible, until the later days of the war, to get Australian officers with sufficient knowledge of its provisions, in their application to our men, to constitute courts martial. It was not until the last year or two - I think that is what the Minister said - that our officers had sufficient knowledge of the Army Act to undertake this responsibility.
– To constitute courts martial wholly of Australian officers.
– And yet there were courts martial composed of Australian officers in the first week of our landing in Egypt.
– And they made mistakes, too.
– Whatever mistakes may have been made then, they were not so grievous as some of the mistakes, according to our ideas of justice, made hy English officers administering the Army Act . to Australian soldiers. We would rather have taken our chance of getting justice from ignorant Australian officers - I mean officers ignorant of the Army Act provisions - than from English officers possessing all their knowledge of the Army Act in its application to the Australian soldier.
– You mean you would rather be tried by officers who understand the conditions of the life of our men?
– That is so. We would rather have been tried by Australian! officers than by English officers under any system of government, because the view-point of the latter is altogether different from that of the Australian officers, many of whom, as was pointed out by Senator Cox, have risen from the ranks and know something of the attitude of mind of the men in the ranks.
– But you would rather be tried by an Australian officer who knew the law he was administering than by an Australian officer who did not know the law?
– Certainly. I want to point out that although according to the Minister it took Australian officers two or three years to become sufficiently cognisant of the provisions of the Army Act to enable them to constitute courts martial, honorable senators are being asked, in the course of the “few days’ debate, to apply the whole of the Army Act to our troops in Australia in time of peace. Can we say that by looking at the cover of the British Army Act, or reading one or two of its sections, we are in a position to determine whether it should be applied to the men of our Citizen Forces from the age of nineteen years upwards?
– You were an officer, were you not?
– Not while abroad.
– Very few officers took up the Army Act until they had to use it.
– Quite so. I may say without egotism that among the troopers in my regiment I was supposed to know as much about the King’s Regulations as any one. That was because I always had a fancy for studying the Army Act and British Army methods. The young men. of Australia, to whom it is now proposed to apply this Act, are in a different position entirely from either the Regular Army or the Auxiliary Forces in Great Britain. Our young men are compelled to train.
– So they are in New Zealand.
– I do not care what New Zealand may be. doing in regard to this matter. I am still entitled to my own judgment as to what I think is right for the Commonwealth. I know that many of the men of the Australian Imperial Force are fearful that some of the things they saw while abroad may, under this Act, be applied to their younger brothers and other young men in Australia. The Minister said this, afternoon that one of the principal reasons for seeking to apply the Army Act to Australia in time of peace was to enable our officers to become acquainted with all its provisions, and in order that the disciplinary methods which obtain in England may be applied here, excepting so far as they may be inconsistent with our Defence Act. I speak with some experience of the men in the British Army who were alongside us in Gallipoli, and my opinion is that the application of too rigid a disciplinary code made them, not automatons exactly, but men who felt they had not a soul to call their own. I have seen all this from the highest to the lowest in the British Army, and I remember a story told of an English regular who had got one stripe. He thought then that he represented everything that stood for discipline and authority, and he was telling what had happened to him. He said, “ What do you think an ‘ Orstralian ‘ said to me? He told me to go to hell - and me a lance corporal !”
– I think we heard that story long before the war.
– Perhaps so, I merely use it to illustrate to what extent the disciplinary methods of the British Army are inculcated into everybody in authority who wears a distinction, from one stripe upwards, and to show that those underneath are crushed and kept down for the purpose of discipline. 1
– And still the British Army is the greatest Army in the world.
– Yes. But the honorable senator misses the point. During the war the British Army - I refer to the regular troops - was the finest Army in the world. But that statement could not be applied to Kitchener’s Army.
– And yet the regular troops were trained ‘ under this Army Act.
– I admit that, but they were men who enlisted and knew the discipline they would have to face.
– And yet you say they had’ no soul to call their own; that they were crushed by this discipline.
– I repeat that, as (he result of the severe application of the disciplinary code, the men felt that they had not a soul to call their own. The British soldier in battle became what he was because he was converted into a fighting machine of the very highest efficiency. If we want to do the same, then apply that Army Act to our men. But if, on the other hand, we want our fighting men to be also broad-minded citizens of the Commonwealth, men with sufficient knowledge of military strategy or discipline . to become, in time of war, the type of soldier they proved to be in the last war, then they should not, by means of this Army Act code, be converted into mere machines.
– Under the Army Act our soldiers became that.
– I am speaking, as the honorable senator knows very well, of what should appertain in times of peace. There is a very great difference. The honorable senator says that our men were under the Army Act during the war. I admit that; and I admit, also, that if we want an efficient fighting machine, the application of the Army Act may be the best way to get it.
– But we train men with the supposition that they are -to be employed for war.
– We do; but the severe discipline imposed, and necessary in war time, should not be required in times of peace’ The Minister himself admitted that it would be impossible to apply the military law in times of peace to the same extent as during war. I want to be quite frank in this matter. A great many of our men are afraid that if the Army Act is applied to Australia,’ the power which it places in the hands of certain men may be used with as much severity as was experienced by our troops during the war, and if that is so it will become a very dangerous instrument.
– But it will be in the hands of Australians, will it not?
– That is so; but some Australians trained in a certain military school develop a type of mind in regard to what they are. and what they have the power .to do. In that respect, they become a menace. The honorable senator will agree that there are some men who, once they become bitten with the military microbe, and have sufficient power, become very dangerous indeed, whether they, be Australians or men of any other nationality.
.- I oppose the amendment and the clause itself. The Minister for Defence (Senator Pearce) has given an assurance that if the clause is rejected the Government will take a certain line of action. The course indicated would be, in my view, the right one. I am not in a position to criticise the Army Act -and the matter of its adaptability to our Forces in peace or’ war. Therefore, my principal reason for voting against its incorporation is that I am not prepared to accept the responsibility for its inclusion. I hold that no honorable senator could make himself sufficiently familiar with the Imperial Act unless he were prepared to give to it some two or three months of close study. Senator Drake-Brockman, speaking of the British Statute, referred to it as the most complete piece of legislation for the government of an Army in the English language, if not in the world. His familiarity with it, I understand, was gained during a time of war.
– Also in time of peace.
– The honorable senator’s working knowledge of it was obtained during the war. I cannot conceive that a piece of legislation, regarded as perfect for the control of an, Army in time of war, can be accepted as in every way applicable to our Australian Forces under conditions of peace. I am led to the conclusion, therefore, that the Army Act could not be properly adapted to our purposes.
– Would you have a different law for a time of peace?
– Absolutely !’ It is necessary to do many things in time of war which should not be permissible in days of peace.
– But how. would we get our officers trained in accordance with the Army Act so as to take charge of our Forces in time of war?
– 1 consider that our officers would be fully capable of grasping the main requirements of the Imperial code during the few months necessarily absorbed in the ordinary training of our troops. I emphasize that I oppose this clause, and will subsequently vote, if necessary, for the deletion of all clauses aimed at the inclusion of the British Act in our Australian defence legislation.
– I also am against the incorporation of the Army Act in our Commonwealth defence laws. I am not prepared to vote for the inclusion of anything in a measure unless I am familiar with its subject-matter.
– The honorable senator was in Parliament when the Bill to apply the Army Act in time of war was passed.
– During the war period we did, and agreed to the doing of, many things for which’ we would not stand to-day.
– We passed that law at a time of peace.
– If that was so, I am willing to admit that there are. many measures for which I have voted without being fully cognisant of their contents and application; but if I have been wrong in the past I do not intend to make that wrong right by committing another wrong now. Senator Foster has said that the British Army was one of the finest, if not the best, in the world. His implication was that that was due to its discipline under the Army Act. I remember listening to a speech by General Hutton, in Western Australia, a little while after the Boer war. General Hutton remarked that at one period of that campaign he had only British troops under him. Lord Roberts desired him to undertake a special task, and he acquiesced, of course, stipulating only that he would like some Australians under him in the performance of the job. The Commander-in-Chief replied that General Hutton might have his Australians, but that they were, at the time, under General Pole-Carew. However, if the latter would permit of the transfer, he was quite agreeable. General Hutton thereupon went to General Pole-Carew and made his request, but he received the reply, “ No ; you can have any troops serving under me, except my Australians.” It is true that these Colonial soldiers were, at the moment, under the Army Act, but they had not been trained under it.
– Yes; our Colonial Forces in those days were under the Army Act.
– Well, that may be; but how many of them had had any pre-war training at all, as a matter of fact? The point is that General Hutton wanted Australians, and could not have them, since a British general preferred to keep them.
The Minister for Defence has said that, if we embody the British Army Act in our legislation, it must be distinctly understood that there will be no clashing or inconsistency with our own legislation. That, however, does not satisfy me. While there may be no inconsistency, there is much in the British Act that is not in our Defence Act, and which, if the Commonwealth Legislature were asked to pass in a separate and specific Bill, would not be accepted . for one moment. The alternative proposal of the Minister,’ however, is admirable. Senator Pearce has said that, if this clause is negatived, it will be the duty of the Government to separate the administrational from the disciplinary features of our Defence legislation, and to bring in a distinct Bill. embracing the disciplinary code. I hope that course will be adopted. It is quite possible that, owing to the different atmosphere, legislation may be passed in Great Britain that would be quite unsuitable in Australia. I am not able to give what may be regarded as a military illustration, but perhaps I may be permitted to recall a civil occurrence. At the inception of Federation it was necessary to frame Standing Orders under which the Senate was to operate, one of which was that. if any point should arise in connexion with our procedure that was not covered by a specific standing order, we were to be guided by the Standing Orders and parliamentary practice of the House of Commons. One of the most eminent Presidents we. have had in the Senate, the late SirRichard Baker, would not adopt such a proposal, because he considered that the Senate should conduct its business under its own Standing Orders.
-I cannot allow a general discussion on the topic which the honorable senator is introducing ; but if he is mentioning it by way of illustration only, he may proceed.
– I am only using it as an illustration. The proposal to be guided by the Standing Orders of the British House of Commons when our own did not apply was not acceptable to the President to whom I have referred, but the principle was adopted in another place. The consequence is that they have a standing order which provides that if a point should arise that is not covered by their own Standing Orders, they shall be guided by the Standing Orders of the House of Commons. A certain incident occurred when a member outside the chamber cast a reflection upon the then Speaker, and, according to the Standing Orders of the House of Commons, that honorable member could be dealt, with as if he had made the reflection within the chamber, and he was dealt with accordingly. Honorable senators will see that the position of the Speaker of the House of Representatives is very different to that of the Speaker in the House of Commons, as immediately an honorable member becomes a Speaker in the British Parliament he has to dissociate himself from anything of a party nature. He immediately ceases to become a member of the Marlborough, Carlton, Reform, and Liberal Club, or any such social institution. He never addresses a political meeting, when he stands for Parliament, and is usually returned . unopposed. In these circumstances the Speaker is in a totally different position, and consequently it is manifestly unfair to be guided by Standing Orders that are not applicable. In the- past I may have unwittingly agreed to the incorporation of certain matters in our Acts, full particulars of which were not before us, but I am not prepared to embody in an Act of Parliament a Statute passed in another country, 99 per cent, of which may be unsuitable, and the remaining 1 per cent, unsuitable.
– In 1903 you took it on trust.
– If I did, I am prepared to admit I was wrong, and am now going to rectify my previous mistake. We do not understand the British Act, and if any amendments are made in it they would automatically become the law of the Commonwealth. We do not know what is in the British Act, and for the reasons given I shall vote against the clause.
.- I do not intend to record a silent vote on this matter, for reasons which have already been given, particularly by Senator Earle and Senator Thomas. It is at present my intention to record my vote against the clause; but I think it would have been better if the Minister for Defence (Senator Pearce) had granted an adjournment to enable honorable senators to have an opportunity of fully digesting what is contained in the British Army Act. Some honorable senators have depicted the British Statute which we are discussing as something of a dreadful character, but from a very casual glance at it, I have come to the conclusion that it contains some very useful provisions.
– The honorable senator served under it.
– Yes; but I have not had the opportunity of carefully analyzing it, and I am not prepared to take it on trust. Particular stress has been laid upon the point that because the British Army Act originated in the House of Commons,, it is naturally of a tyrannical nature. Honorable senators who have referred to the discipline in the British Army as being comparable with Prussianism are entirely wrong, and Senator Elliott and others know that, although there may have been more discipline in the Imperial Army than in ours, it depended largely upon those who were administering the Act, ‘and not so much on the Act itself. The records of the British “ Tommy “ during the last 100 years stand second to none. I have had the opportunity of coming in contact with members of the Permanent Forces of the British Army, and as a lad served with the Territorial Forces in England.
– The honorable senator does not regret having worked under the British Army Act?
– No ; but as I have not had the opportunity of perusing its provisions very closely, I do not feel justified in supporting the Government proposal at this juncture. I do not think honorable senators are acting fairly towards the British “ Tommy “ and the British Army generally when they endeavour to institute unfavorable comparisons between the members of the British Forces and those from other parts of the world. The British “Tommy” did his share equally with the representatives of the Canadian, South African, and other Dominion Forces; he was always where he was needed. We have also to remember that practically the whole of the British Forces who served on the Western and other Fronts consisted of volunteers, and it was only at a desperate stage in the conflict, when a majority of eligible men in Britain had enlisted under the Derby and Kitchener schemes, that conscription was introduced in order to bring in the slackers who were not prepared to render service to their country. I trust that no further unfavorable comparisons will be made between the soldiers of different portions of the Empire, because all of them fought for the same ideal, and, I venture to say, with equal bravery. Throughout the whole of the great conflict, which has happily terminated with complete victory to the Allied Forces, it may be said that (if there was dissatisfaction in any of the British regiments it was probably due to the action of commanding officers, and not only to the Act which they were administering. Senator Elliott, Senator Cox, and others who served in the different theatres of action, know very well that there were members of our own Forces who, when they had a few stripes on their arm, or one pip on their shoulder, became veritable Czars. I know that . is a fact, because I came in contact with some of them. Thank goodness, they were very few and far between. On opening the British Manual on Military Law at page 369, I could see from what appears there that it is impossible for us to accept the whole of its provisions. A schedule is provided concerning the billeting of soldiers, which shows that the maximum price to be paid to soldiers when billeted with the individuals or hotels, as the case may be, is -
Lodging and attendance for soldiers where meals furnished, 6d. per night.
Can any one imagine soldiers being billeted at Menzies’ or the Hotel Australia at 6d. per night?
– Does the honorable senator think that soldiers would be billeted at such hotels?
– Some may consider it ridiculous to make such a suggestion, but firsf class . hotels in Cairo were turned into billets.
– Such hotels as the honorable senator mentioned would not be exempt.
– Certainly not. The schedule continues -
Breakfast as specified in part 1 of the second schedule to the Army Act, 5d. each. Dinner as so specified, Is. Id. each.
– The honorable senator never had a 5d. “feed” under the Aus-. tralian Act.
– Unfortunately I have never had a 5d. meal in my life. What will be the position if this Bill becomes law?
– We acted under the Army Act as well as under our Defence Act.
– The honorable senator means to say that if the Army Act is incorporated in our Defence Act he will be able to apply such provisions of it as he may think fit.
– That is a stronger argument than any I have put up for voting against the incorporation of the Army Act. I can imagine that Senator Cox would have a high old time if he could use such provisions of the Army Act as he desired to apply and set the rest aside. There are a great many provisions of the Army Act which commend themselves to me, and especially section 43, which I quote from page 415.It reads : -
If any soldier thinks himself wronged in any matter by any officer other than his captain, or by any soldier, he may complain thereof to his captain,” and if he thinks himself wronged by his captain, either in respect of his complaint not being redressed or in respect of any other matter, he may complain thereof to his commanding officer, and if he thinks himself wronged by his commanding officer, either in respect of his complaint not being redressed or in respect of any other matter, he may complain thereof to the prescribed general officer, or, in the case of a soldier serving in India, to such officer as the Commander-in-Chief of the Forces in India, with the approval of the Governor-General of India in Council, may appoint; and every officer to whom a complaint is made in pursuance of this section shall cauae such complaint to be inquired into, and shall, if on inquiry he is satisfied of the justice of the complaint so made, take such steps as may be necessary for giving full redress to the complainant in respect of the -matter complained of.
– The military authorities will not allow that provision to apply. They cut it out by a regulation, which, in turn, they may disregard if they think fit. That provision is abrogated by our regulation, which can be disregarded by the high officers.
– If the section of the Army Act I have quoted were put into operation here it would meet Senator Elliott’s case.
– That is so, and I am submitting an amendment to embody that specific section.
– Then I shall have very much pleasure in supporting that amendment.
– We shall not bring that section into force here by passing the clause before the Committee, because, as I have said, it is abrogated by a regulation under our Defence Act.
– The honorable senator means to. say that, even if the whole of the Army Act is incorporated in our Defence Act, as proposed by this Bill, it will be poasible by regulation to abrogate the section I have quoted.
– That is so.
– A regulation cannot override the sections of an Act.
– It can in this case, because the proposal is that the Army Act is to apply to our Forces only so far as it is not inconsistent with our Defence Act or regulations made thereunder.
– If that be so, I can see no advantage at all in incorporating the Army Act.
– Not unless we provide punishment for disobedience of its provisions as I have tried to do by my amendment.
SenatorFOLL. - I am glad that Senator Elliott is proposing to include the section of the Army Act which I have quoted in this Bill.
– We already have it in- our Defence Regulations.
– Can the Minister inform the Committee whether the sections I have quoted will apply to our Forces if the clause under consideration is passed.
– It will not apply, because it is inconsistent with our regulations. There is a right of appeal under our regulations equal to that given by the Army Act, and, therefore, the Army Act provision will not apply to our Forces.
– The only difference is that in the Army Act, failure to give effect to the section may involve punishment, whilst under the regulation made by the heads at the barracks care is taken that there shall be no punishment for a breach of the regulation if they break it.
– We shall deal with that later on.
– I think that Senator Elliott is wise in submitting an amendment to include the section of the Army Act which I quoted in this Bill. I feel confident that it must commend itself to the majority of honorable senators.
There is a great deal of valuable information . in the Army Act relating to the action of soldiers on the field, so far as the sick, the -wounded, and the dead are concerned.
– The honorable senator’s time has expired.
Senator DUNCAN (New South Wales’ [6.47]. - I am very sorry that I should have to rise at this late hour to detain honorable senators from perhaps^ a more pleasant way. of filling in their time, hut the interest taken in this par ticular matter is so intense throughout New South “Wales that. I feel that it is incumbent upon me to place o” record my opinions regarding this- very important proposal. Almost without exception the returned soldiers’ organizations of New South Wales have declared against it. Since the matter was first mentioned in the Senate a number of branches df the Returned Sailors and Soldiers -Association have held meetings, and they have not hesitated to’ express themselves pretty strongly against the Government proposal. I think that practically every- branch of the Returned Sailors and Soldiers Association that has met since this matter was introduced has expressed itself against the proposal of the Minister. Whenever I have had anopportunity of meeting returned men in Sydney or in other parts of New South Wales, and have consulted them as to choir view of the Ministerial proposal, I have almost without exception found those to whom I have spoken opposed to it. These men are, as the Minister and other honorable senators have said, the men who worked under the regulations and discipline of the British Army Act. They know what it is and what its application ‘to Australian conditions would mean. (
The clause is a most important one, in the first place, because it proposes to apply to Australian soldiers a’ decision arrived at by another Parliament altogether, for application to entirely different individuals. Even those who support the proposal of the Government will admit that the British “Tommy,” magnificent soldier as he is, and excellent in every way, is an entirely different kind of individual from the ordinary Australian! soldier or citizen. In Australia, because of our peculiar conditions and circum stances of life, we are evolving an .altogether different type of individual from the citizen of Great Britain. The man who in ordinary circumstances becomes the British “ Tommy “ has from infancy lived under, more rigid conditions than can apply in any part of Australia.
– Yes, unfortunately. He is hidebound in every way and circumscribed by convention. He lives under conditions which Australians do not have to live under, and is consequently an entirely different individual from the ordinary Australian.
– I think the honorable senator stresses the difference too much.
– I am stressing it because it is so important. Here we have in the Army Act a legislative measure evolved by the British Parliament with an understanding of British conditions, and intended to be applied to men who hav( lived all their lives and have been brought up in entirely different circumstances and conditions to those prevailing in Australia. It is now proposed, to apply the provisions of the Act to the entirely different Australian citizen. .Senator de Largie may be unable to see the difference between the Australian and- the ordinary “ Tommy,” but if he had been on the other side, as many of us were, he would have seen for himself the tremendous difference between the two individuals. The honorable senator would know that so far from its being practical to apply certain provisions of the British Army Act to Australian soldiers, it is quite impossible to do it. It is only because Australian officers shut their eyes to many things which a British officer would never dare to shut his eyes to that it was possible to administer the British Army Act in its application to Australian soldiers at all. I had an opportunity of coining into contact with a section of the British Army when at Namur after the Armistice I was attached for specific duties to the British Fourth Army under General Rawlinson. I had again at Tidworth. in England, a magnificent opportunity to study the British “Tommy” and the application to him of British discipline under the Army Act. Honorable senators who know ^anything of the matter will agree with The when I say that it was possible to submit the British “ Tommy “ to discipline that no Australian soldier would submit to. It is not that the Australian soldier is more undisciplined than the British “ Tommy,” but because of his superior intelligence, for which he has to thank, not himself; but the conditions under which he lived in Australia. He would not submit to the same kind of discipline as the British “ Tommy “ would submit to. I have no desire whatever to belittle the British “ Tommy,” but I say that the British Army is run. very largely by fear - fear of the “Tommy6 for his officer. That is really what discipline in the British Army means. The British “ Tommy “ is largely trained in a spirit of fear to submit to certain things.
– Does that apply to the Black Watch?
– It applies almost all round to the British Army, but not, perhaps, so much to ‘ Scottish regiments as to English regiments. The British “ Tommy “ lives in a. constant atmosphere of fear. I say that, knowing full well what I am saying, and meaning every word of it. .On the other hand, the Aus. tralian soldier throughout the war was afraid Qf nobody, and least of all, perhaps, of his own officers. If there was any fear at all in the Australian Array, it was on the part of the officers. I have heard that some officers would have liked to do certain things, but they were afraid the men would not stand it. Senator Drake-Brockman will, no doubt, admit that certain Australian officers who were, perhaps, a bit too fond of discipline, and liked to rub the* noses of men in the dirt, ran the risk at times of becoming casualties, or, perhaps, they saw the error of their ways and reformed before something happened to them in some engagement The men of the Australian Imperial Force and the British “ Tommies” are two entirely different individuals actuated by different motives. In view of all these circumstances, and ‘ because of the horror entertained by the average Australian for militarism in any form, it would be unwise to attempt to apply the Army Act to our defence system as contemplated in this BiU.
– In time of peace
– In time of war it would be impossible to apply it with all its rigidity. How much more difficult therefore, would it be to apply it in time of peace? We are now in a condition of peace which we hope will continue for many years. We are going to build up an army to defend Australia, and hope to have many years in which to carry out that great work, but we hope that we shall not be required to send our men to some other part of the world to fight for the Empire again. If ever such an occasion should arise again it will be time . then to bring forward a proposal of this kind.- If it is not possible to instruct our officers in ‘ the provisions of the British Army Act within the period of their training, there, is nothing to prevent the Minister from incorporating in our Defence Act regulations as part of the curriculum of instruction for officers a thorough grounding in- the British Army Act. The men do not like the Act. Parliament should give some consideration to the opinion of men who have to work under it, -because they have it in their power by reason of their friendliness or hostility to make it or break it. We’ cannot afford to ignore their view-point. I say that 99 per cent, of the men who were in the Australian Imperial Force are opposed to the incorporation of the British Army Act in our defence system even if it were a good thing. The fact that the great weight of public opinion, and particularly that public opinion’ as expressed by ex-members of the Australian Imperial Force, is so strongly against it, should persuade us that it would be foolish to go on with this proposal. I hope that the clause will not be passed. Neither am I in favour of the amendment. Let us wipe the whole business out altogether and insert in pur own Defence Act those provisions and regulations that may be necessary to insure Bound discipline for our -Citizen Army. We can do this. We do not want::, to apply all the provisions of the British Army Act. Most of them will never be applied to Australian conditions. Other portions we would not dare . to apply, even if we could. Let us, therefore, formulate our own regulations ‘ for discipline. If we do this we. shall find ready acceptance on-the part of those who have to train under it, and a willingness on the part’ of our citizens to co-operate with the Government in every honest and worthy attempt to provide adequate Defence Forces for the Commonwealth.
.- 1 am distinctly opposed to any attempt to incorporate the provisions of the British Army Act in our Defence Act, and particularly to any attempt to do so without giving honorable senators the fullest opportunity of considering those provisions down to the minutest details. It has been said that the Army Act is perfect; that it is the embodiment of centuries of experience. It all depends on how you regard this weapon - this perfect Act, as it has been called.
– This perfect piece of draftsmanship ?
– I might call it a perfect instrument of torture. If you are in a position of advantage, you can swing it round like a machine gun, and wipe out anybody who is opposed to you. Starting from the ranks myself, I know what it feels like to be the under-dog with another man wielding this instrument of torture over me. My earliest experiences of this Act date from the time when I joined the ranks for the South African war. I attained to the dignity of one stripe, and one day was in charge of a gang of men unloading some bags of mealies. We took advantage of the fact that the sergeant-major’s back was turned, and, as the day was hot, we had a “ spell-ho.” Suddenly the sergeantmajor, who was an old Imperial soldier, dashed up, called us a loafing lot of blackguards who had never done a day’s ‘work before in our lives, and so on. He made a number of other uncomplimentary remarks which I need not retail here. After the men had gone away, I said to him, *’ Sergeant-major, that was not a fair way to talk to these men.. We came here to fight, and we have been kept for a month feeding mules. I, for one, want to get back to my university course, which I broke off to come over here and help the Empire. Surely they can get niggers to do this work.” The sergeant-major called me to attention, summoned a file of the guard, and had me paraded before the captain charged with “ being insolent to a superior officer,” and stated “he is not fit to be a corporal; too much sympathy with the men.” Now, if my captain had been an Imperial officer, he would have said, “ Sergeant-major’, what shall we give the blighter?”
– And yet you have not done so badly under this Army Act. You started as a trooper, and are now a general.
– I must ask honorable senators not to take any notice of Senator Cox, for, although his grey hairs entitle him to respect, the feebleness of his reasoning betokens the early approach of second childhood. I have said that it all depends upon how you view the regulations of the British Army Act. I admire my machine gun when it is in its emplacement, so that it can mow the Germans down, but I have a wholly different point of view when the German has it trained on me. That is how I view the Army Act. .
– But you did not finish your story about’ the sergeantmajor.
– I was about to say that, had I been brought before a British officer, imbued with all the traditions of the British Army and trained under that Act, I would have been reduced to the ranks, and the charge and its sentence would have been a bar to my future career. I might still have been a private. Fortunately, my captain, being a Victorian, and not having been trained under this perfect instrument of torture, looked at the sergeant-major,, then looked at me, and said, “Admonished. Corporal, do not do it again.” I may add that my captain had “sized” up that sergeant-major pretty accurately, and watched him closely; with the result that not long after he got him reduced.
The manner in which the British Army Act is administered reminds me of the scene in the Merchant of Venice in which Shylock demands his pound of flesh under what he regards as a perfect law, but when he discovers that he cannot have his due without a drop of blood, it is a case of “Oh, dreadful law!” It all depends upon the point of view.
– I think you had better stick to your soldiering. Leave Shakespeare alone.
– I believe’ a shoemaker will stick to his last, and so I had very little to say yesterday in contradiction of Senator Guthrie’s remarks about the wool position. It might be advisable now for him to say little about these things.
No one cam say that my brigade in the field was undisciplined. If honorable senators care to read the history of the 5th Division, edited by General Hobbs, they will find that, contrary to the British, reports, I prepared the whole of the plan for the counter attack on Villers-Bretonneux and that it was my brigade that carried out the operations in conjunction with General Glasgow. The operation is described in last week’s Argus as one of the most perfect examples of battle discipline. I may add that I communicated the plan to my Commanding Officer, General Hobbs, and he, in turn, communicated it to the British Commanding Officer, because the British were going to counter attack first. Then as this man could not, or would not .advance, they borrowed the two Australian brigadiers I have mentioned. But in British orders it is described thus : “ The idea so brilliantly con- ceived by the Third Corps was ably and gallantly carried out by the Eighth British Division, assisted by the Australians.” As a matter »f fact, in training my brigade for that opera- tion, which was admitted by the British staff officers to have been the most perfect battle discipline under extraordinary difficulties, I employed most of my time in breaking the British Army Act for the benefit of my men. I well remember, when I first formed the brigade, they marched me across a desert, and camped me at a place at 9 o’clock in the morning, with only about a pint of water.
– There was faulty staff work on your own part if you marched your men across that desert without water.
– It was said on one occasion by a Marshal of France that he was unable to beat the British troops, in spite of their generals. In the honorable senator we see a typical example of the class, of officer whom the Frenchman indicated. *
– Order ! I beg honorable senators to re frain from recriminations in. respect of their various military qualifications.
– I have said that 1 had no water except a pint of the fluid. However, I was told, “ Never mind; march!” And I was compelled to march. My Force arrived at its destination, and. still there was no water. I appealed through the telephone to every superior officer whom I could raise; and at last they promised me water at 6 o’clock in the morning. I did not believe them, however. I had my horse saddled.
– What’ has this to do with clause 18 1
– I acknowledge that the connexion is apparently remote;
Out I deemed it probable that the honorable senator was employing his illustration in regard to some point of discipline under the Army Act.
– I am trying to illustrate the kind of thing that goes on under the Army Act. But, in deference to Senator Bolton, and to his inexperience in military matters, I will not press the point.
– Did you get the water ?
– I will drop my story, in deference to Senator Bolton, since it seems to’ hurt him. It has been urged that the British Army, under the Army Act, was the most perfect Force that could have been created. I admit that the British Regular Army was a very fine army. It was capable of splendid work against a similarly constituted regular army, such as were the Germans. But it failed against the irregularly constituted troops in America. It hopelessly failed against the irregular forces in South Africa ; and it would fail again in similar circumstances. In fact, it may be said that the British Army is excellent in spite of the Army Act, rather than because of it. However excellent that Act may conceivably be, as applied to men with the training and early associations of the British Army, I am convinced that it would utterly break down if efforts were made to enforce it in respect of our own troops. Half the time, during the war, we would have had mutinies if the senior officers of the Australian Imperial Force had not been constantly watering down the severe provisions of the Army Act.
– That practice has to be undertaken at times in regard to any law.
– The point is that it had to be left to the good sense and sound judgment of our senior officers. The Act was there all the while; and I would beloth to give some of my fellow countrymen - and I speak from the fullness of experience - the opportunity to strictlv enforce its provisions.
– It has been said that if the railway authorities were to insist upon the observance of all the. railway regulations, the whole system would come to a standstill. But would the honorable senator do away with the whole of the regulations governing the railway service because of that?
– If the regulations are unworkable it is the height of redtape folly, and typical of government by roublic Departments, to perpetuate such a state of affairs; there should be a drastic cleaning up. I will give an instance of the extremity to which the stupid system of discipline was put during the war, under the Army Act. I hope to have the opportunity of describing this illustration, since I was ruled out of order when I endeavoured to do so at an earlier stage. An effort was sought to oompel every Australian officer and man to salute a motor car whenever it passed with a flag on it, no matter whether there was anybody in the car or not. It- had to be presumed that the car contained a general. I raised my voice in emphatic protest. It was a shame and a travesty to enforce this absurd regulation, for example, on troops who had just come out of the line, covered in mud and blood, and dazed with, lack of sleep and the strain of it all.
– They wete required to salute the flag, and not the car.
– I have no objection to that. I protested against the infliction of this form of discipline, and not against the recognition of the flag.
– The Union Jack is not a bad flag to salute.
– I agree; but I objected to this pin-pricking and harassing of our war-bedraggled and weary men. Nothing could have been more irritating or hurtful to our soldiers, particularly when coming straight, out from the front lines, and I objected against the infliction of what was really nothing more than a petty form of punishment. Eventually I got my own way.
– Order ! The honorable’ senator’s time allowance has expired.
– It is obvious that conditions in Australia are not comparable with those in England. Under lenient control, the Australian Imperial Force proved to be. one of the best Forces engaged in the war.
– Under the Army Act, and administered by Australians.
– And watered down by them. There is one feature of the proposal to incorporate the British Army Act in our legislation which has not so far been stressed. The latest copy of the Act available in this Chamber is” that of 1914. It is the 1914 Act which the Government propose to embrace in this Bill. The Army Act is re-enacted each year with modifications and additions. During the war period there were inevitable amendments; but we are to incorporate the Act of 1914. And that incorporation is to embrace all the amendments that may have been made meanwhile, together with all those that may be made- hereafter. I have never heard the like of such a proposition. The Australian does not need, and will not yield to, the stringent discipline of the Imperial Statute. I would not object to the proposals of the Government if they had to do with a time of war. I would not object to our training officers being made familiar with the British Act, so that if a state of war were to recur they would be fitted to administer its provisions. However, if we incorporate the Act it will have to do, not only with our training officers, but with every man in our Citizen Forces. The Australian ideal is for the creation and maintenance of a Citizen Army whose units can return, after their requisite period of training, to the status of private citizenship. In training Australians to make good soldiers, we should not do anything calculated to militate against their remaining and returning to the status of good citizens. In time of peace, throughout our military training, the ideals of the citizen should be uppermost, while in time of war the ideals of the soldier should have, as they did have, complste sway. Should the time’ ever arrive when it may be necessary for our officers to become acquainted with the British Army Act, I am sure they would rise to the occasion, and, even in the course of a very brief training under war-time conditions, prove themselves just as efficient as in the great war. What will be the position if this Bill becomes law? It has not been shown by any honorable senator this afternoon - and every opportunity has been given to those who wish to see the Army Act embodied in our Act - that those trained under the Army Act have proved superior in time of war to Australian soldiers. When this Bill was introduced only two or three copies of the Army Act were laid on the table of the Senate, and surely it will not be considered that that number was sufficient to enable honorable senators to have an opportunity of being conversant with its provisions. We had only about fortyeight hours to peruse this most drastic piece of legislation that has been so highly spoken of by some honorable senators, and which we are now expected to be sponsors for. I am not going to stand before my constituents and adroit that I was’ fool enough to assist in passing something that I did not know anything at all about. It is all very well for some men who have worked under it to say that it is all right; but we know that the rank and file, particularly . in Australia, strongly object to it, and the very people from whom we expect to draw our Citizen Forces are strongly opposed to militarism. (It is because of this that I shall record my vote against the clause if a division is taken.
– When my time expired, I was saying that a great many men in Australia objected to the Army Act, not because they knew much about it, but because they were fearful that some of the punishments which have been applied by the British officers would be inflicted on them. The Army Act may be a good piece of legislation, and there may be quite a number of disciplinary provisions which are almost identical with some of those in our own Defence Act and its regulations. The fear that ex- Australian Imperial Force men have in regard to its inclusion in our Act is that punishments may be inflicted by the military caste.
Sitting suspended from 6.30 to 8 p.m.
– If the provisions of the British Army Act were em bodied in our Defence regulations, I am afraid that what is known as the No. 1 field punishment would be inflicted. This particular punishment was strongly objected to by the Australian Imperial Force men, and I think I may safely say that I do not think it was ever inflicted by an Australian commander.
– It has been inflicted in Victoria.
– Then all the more disgrace on the officer who inflicted it. What is known as No. 1 field punishment is tantamount to imprisonment, with hard labour; but when the Army is in the field, a soldier cannot be imprisoned, but has to be punished in some other way. I remember when our troops were in the field some of our Australian boys saw the. punishment being inflicted on British soldiers, who were actually crucified by being stretched out at arm’s length in. the burning sun for two hours at a time.
– What was that for?
– They could not be imprisoned, and so they had to be punished in that way. It is a most severe; form of punishment, and our troops were so incensed at the sight that they ran amok, and cut down the two British soldiers. Not satisfied with that, they wrecked the canteen, and had enough “booze” to last them for a couple of day’s. That was the attitude of. Australian soldiers towards this particular form of punishment.
– That was in wartime.
– Yes, and the Australian soldiers will always be strongly opposed to such punishment as that I have mentioned. I think Senator Elliott will support me when I say that as far back as the South African War, when such punishment was inflicted, it always, caused’ a riot.
– As Senator Duncan mentioned this afternoon, there is no doubt that in the field the majority of Australian officers were afraid to inflict any such punishment on the troops undertheir command. I want honorable senators to bear in mind that that particular form of punishment is inflicted in the field, not for an offence under which we could proceed against a man under ‘ the civil lav, but for a military offence.
– It might be for saying “ Bosh ! “ to an officer.
– Exactly ! I have been given specific examples by men serving in the British Army of punishment for what is known as “ dumb insolence.” An officer may do something to annoy a mau - he may even curse him - and if he declines to reply he may be charged with “ dumb insolence.” I have known officers inspecting men standing at attention to peer into their eyes as if they were dogs, and to endeavour to make them flinch’, oi in some way to make them guilty of what is known as “ dumb insolence.”
– If the man were so stupid, would he not do it under any Act?
– I do not think so.
– This is to train them up in that sort of thing.
– Is it? How can an Act make a difference in a man’s character or temperament ?
– It is not the question, of a man’s character, but of the power given a superior officer to handle his “machine gun.”
– He has a “ machine gun “ under the Defence Act.
– He has power under that Act to proceed against the man who is charged with behaviour prejudicial to good order and discipline.
– The honorable senator is dealing with the behaviour of an officer.
– Yes, because I am endeavouring to show that an officer can adopt such an attitude under the British Army Act, but not under our own Act.
– There is a similar punishment under the Defence Act.
– There is no punishment for “ dumb insolence.”
– There is a punishment for insolence, but not dumb insolence.
– That is one of the customs of the Service.
– “Dumb insolence” is merely a nickname. There is no mention of it in the Army Act.
– I cannot find a specific mention of it in the Army Act, and in the Defence Act we have no such offence. The soldiers can be charged with conduct prejudicial to good order and discipline, and on more than one occasion the power to punish for such an offence has -been abused by officers. In my own regiment a man, charged with threatening behaviour to his superior officer for breaking away from the escort, being drunk on duty, threatening to blow out the brains of a major, was further charged with conduct to the prejudice of good order and military discipline. Sometimes punishment is necessary, but our experience has been that when you give too much power to officers - I am not even prepared to give too much authority to ‘ our own Australian officers - it is likely to be abused. I am not in favour of giving greater power than we have in our present Act, because I am afraid that injustices may arise, and an attempt be; made to inflict the No. 1 field punishment. If the British Army Act is incorporated in. our Defence Act that punishment could be applied, and soldiers could also be charged with “ dumb insolence.” If we adopt the proposal of the Government we will not be acting in the best interests of the citizens and soldiers of Australia.
. -The wisdom or otherwise of the general application of the Army Act to Australia is a question! that cannot be properly discussed by an honorable senator who has not had military experience, and is a point which a layman hardly cares to dogmatize upon. Whatever may have been allowed in the past, ‘ to-day the Senate is better able to determine whether or not the British Army Act shall be. applicable to our Forces, and, if so, to what extent, at what times, and under what circumstances. For the first time in the history of the Senate there is a’ considerable number of senators, in proportion to its full strength, who have seen a good deal of the manner in which the British Army Act operates. When we were dealing with this question on any previous occasion, we did not have that advantage, and a layman or non-military senator hesitates to dogmatize about these matters. All we can do is to listen to the experience of those who have been to . the Front and can tell us what the administration of the Army Act, as applied to our Forces, has meant.
I am against anything like the adoption of the principle that the Army Act shall, in time of peace, he applicable to the Defence Forces of Australia. There are two reasons in particular why, as a result of this debate, I have come to that conclusion. Senator Drake-Brockman, who supports the principle of the application of the British Army Act to our Forces, says that the Act, as a code, is excellent and, so to speak unimprovable. No doubt it is excellent, admirable and unimprovable for its purpose and for the circumstances to which it has application, but, as has been pointed out in this debate, those who enlist in the British Army are expressly warned in regard to the principles of the Act before they enlist, and are afterwards given the opportunity to proceed with their enlistment or withdraw, whereas, under the Australian system of compulsory training, no- such option is given to the individual. That is the most distinguishing characteristic between the British Army and the Australian Army, and one that should carry some weight with honorable senators in considering the proposition now before us.
Another feature of the British Army Act referred to byprevious speakers is that it must be renewed annually by Parliament. In the course of annually renewing the Act it is competent for the British Parliament to modify it or amend it, and, as a matter of practice and experience, on more than one occasion, it has been so amended. Then again, quite apart from the original Army Act and its subsequent modifications introduced on its annual consideration, there are regulations, both under the Army Act and under that measure as amended from time to time, so that if we adopt in our legislation a provision that the Army Act and the regulations framed under it shall he applicable to the Defence Forces of Australia, we accept not only what is in the existing Army Act of to-day and the regulations under it, but also that Act as it stands from year to year, subject to such modifications as may be introduced into it by legislation and whatever regulations may be framed under it from year to year.
– If they are not inconsistent with our own Act.
– Yes ; if they are not directly inconsistent with our own provisions, but there may be. in the modifications of the Army Act or in the regulations, some provisions which, al though, not inconsistent directly and expressly with our own conditions, may be, nevertheless, obnoxious to Australia. Then it would be necessary for us to keep our eye continuously on the British Army Act and regulations, and from time to time to introduce legislation here -
– Or regulations.
– Or regulationsif the matter came within the ambit of a regulation - to the effect that such-and-such a provision of the British Army Act or the regulations framed under it should not be applicable to the conditions of Australia. - That is a procedure which, I think, the Commonwealth Legislature should not adopt. It would mean that we wereabdi-, eating our own . responsibilities. We ought to be able to adopt a code applicable to the conditions of military service in and for Australia, and might very well be guided in the framing of such a code by the provisions of the British Army Act. We might adopt all that we thought was excellent in it, or the regulations framed under it.
SenatorRowell. - Does not the honorable senator recognise that in peacewe are training officers and men under one system, and that as soon as war occurs we place them under another system which they have not learned?
– If we take the course I am now suggesting, they would very rapidly learn the difference between the two systems. By adopting a code of our own based primarily upon the British Army Act we would, to a large extent, familiarize them with the provisions of that Act and the regulations under it; and when it became necessary for our officers and men to learn the provisions of the British Army Act and the regulations under it, all they would practically have to learn would he the differ- . ences between the two codes. If we adopted that course, we would be doing something consistent with the dignity of this Commonwealth Parliament and our responsibilities. For that reason, I am opposed to the proposal to adopt the British Army Act and apply it to our Forces, or to adopt in advance regulations that may be made under that Act from time to time .
.- “When I was speaking previously,^ I was dealing with the principle of saluting the flag, which raised the question of saluting senior officers generally. I suggested that many of the complaints made against Australian soldiers arose from the fact that our men, busy Avith other things, did not- think of saluting. The practice of saluting had not been ingrained in them as it had .been in the British Army. Having observed that if the senior officer raised his arm and commenced” to salute, our men would respond immediately, I suggested the adoption of this practice, and a humorous incident occurred when it first came into vogue. Just after the First Division had made that splendid attack on the Menin-road, and wis being relieved by the Second Division, my brigade was waiting for its turn to go in. General Birdwood, who was. then generally known as “Rainbow Bill,” on account of the number of ribbons he wore on his chest, was watching the First Division coming out, and was saluting in accordance with the new system which had been adopted. Of course the boys responded but I overheard my cook, who was watching, say to a mate, “ Cripes, Bill, the boys must have done well. ‘Rainbow Bill’, is saluting every Aussie he meets.”
Senator Foster has drawn attention to some of the amazing charges that can be brought up under the Army Act. They are_ not very often strictly justifiable under that measure, but when there is any doubt on the point, the custom of the Service is brought into play, and cannot be knocked out unless an appeal is made to a civil Court. Flogging was even brought in as a custom of the Service. The case is cited of a colonel who inflicted a punishment of 500 lashes and ‘ who, when sued, claimed the protection of the custom of the Service. After an exhaustive examination of the evidence, the civil Court came to the conclusion that he had gone even beyond that custom, which did not permit him to inflict a punishment of more than fifty lashes. It took an Act of Parliament to wipe out that evil custom which Had grown up. Senator Foster will find that the well known rule in British regiments about “ dumb insolence “ is justified by the custom of the Service. During the South
African war I was given a commission in the British Army, and for a time was attached to the Coldstream Guards. In1 that regiment junior officers must undergo training by the sergeant-majors, and these officers instructed me very minutely in all the little tricks and customs of the Service. The Guards are extraordinarily smart in answering an order, and they explained to’ me how the unfortunate recruit is trained in this respect. . If a sergeant-major, walking about, sees -a recruit cutting ip tobacco to put in his pipe he calls him to 3o something, and if the man pauses to put the tobacco into his pipe before obeying the call, he is charged with “hesitating to obey an order “ and is severely- punished. He must drop everything at once and dash to answer the call. This is not imagination on my part. As a prospective subaltern in the British Army, I paid close atten tion to all these customs, about which a very efficient sergeant-major gave me minute instructions. A favorite method of quieting an obstreperous mau who is drunk and very abusive is to gag him with his own socks. All these punishments can be justified, if not under the Army Act, then under the custom and traditions of the British Service. If we, as it is proposed by this Bill, deliberately import the British Army Act bodily into our Act, we shall also bring into our Service all the customs and traditions of the British Army Service however bad, and we shall have only ourselves to blame.
For my part, I feel so strongly on this matter, and in view of the fact that in a few years my son will be serving, that, if this is done, I shall be prepared to help Senator Gardiner in opposing compulsory service.
– Hear, hear! I will help you in that.. ,
– One never knows where he is with the British Army Act. It catches him like a boomerang. I told honorable senators the other day of what occurred when ‘General Hobbs ordered me to occupy a village which I found to be in the occupation of people who had no business to be there. If I Sad not. obeyed my orders to occupy the place, and, in consequence, my men had not got the rest they needed, and if I had not been ready to march into the fight, I would have been court martialed for having disobeyed orders. I referred the matter to my general, and he did not cancel my orders in any way. Therefore, after waiting half a day, I proceeded to carry them out to the best of my ability by telling the officer in command of the troops in possession of the village plainly that he must get out, otherwise I would march him out and put my men in. I was “ strafed “ for doing that’, although General Hobbs admits that I had great provocation.
– It seems to be that all the provocation waa not on the one side.
– I had definite orders to do a certain thing, and if I had not carried them out I was liable to be court martialed and disgraced, or imprisoned.
I thought I knew all the tricks that might be played under the Army Act, but Senator Drake-BTockman showed me how it was worked. Senator Pearce was very insistent that there was a regulation preventing an cfficer being superseded in a regiment withrut being given an opportunity to object. I raised the case of Captain Jacka, and Senator DrakeBrockman, in replying to what I said, showed that Captain Jacka had never been superseded in his regiment, because the matter was dealt with in a different way. A senior officer from outside the regiment was brought in and put over his head. I should say that that was even more effective than supersession to break a man’s heart. If Captain Jacka were an extremely popular officer with his battalim, as he certainly was, the introduction of an outsider, and his appointment over Captain Jacka’s head, would punish the whole battalion. Senator Drake-Brockman has explained that that was the sort of thing that was done.
I can cite he case of a Polish Jew who could not speak English, and who, in the three months during which he was attached to that battalion, never by any chance went near the front line. Whenever an action was imminent he developed synovitis, and his unfortunate adjutant, Captain Wa-nliss, one of the best officers we had, a nephew of Sir William Irvine, and a man who was dux of my own college in Ballarat, and later dux of the Hawkesbury College in New South Wales, and who in his first action gained the D.S.O. and was recommended for the V.C., had to do the work of tha unfortunate illiterate, who could not write his own orders. Captain Wanliss had to be. working all day in his dug-out, and then had to go into the front line at night.
SenatorFoster. - Was the Polish Jew a master of strategy ?
– God knows what he was, but in two months he never learned to spell Jacka’s name.
– What was the rank of this man ?
– He was a major, and was put in command of the battalion though he could not speak English. I do not know where he came from originally, but the position became so bad at last that headquarters could not stand him and fired him home. Then there was a man named Smith, a permanent officer of the Forces here. He went over with the 3rd Division. General Monash tried him in two places, as a brigade-major and as a battalion commander, and he had to be kicked out of both. When General Birdwood intervened in the affairs of the 14th Battalion, after Bullecourt, he insisted on this mau taking command of the 14th Battalion over Captain Jacka’s head. He had joined with him a man named Thompson, who was also an utter “ dud.” This will show what may be done under the Army Act At Polygon Wood, where Jacka distinguished himself, to cite’ the official account, “by the most magnificent bravery,” this man Smith disappeared for two days, and during three days Captain Jacka ran the whole show. The colonel, in disappearing, took his telephone instruments with him, and Jacka had to beg, borrow or steal telephone instruments, make a new headquarters, and continue the action.
– Was this the Polish Jew?
– No, the Polish Jew had been got rid of by this time. This was a permanent officer, who was subsequently duly whitewashed, and holds a good command here in Austrafia.
– Of what rank was he?
– He wasa colonel. I told honorable senators that I had not fully investigate 1 Jacka’s case, but I have since done so, and I am prepared to lay before the Senate statutory declarations on the subject if the Minister for Defence will promise to institute an action for perjury agains the man who makes them in order to clear up the matter and to give the public an opportunity to learn the real facts of the case.
– I should be busy for the next fifty years if I followed up all these tarradiddles.
– I have a letter here from a lieutenant-colonel, who is also a distinguished lawyer. He writes -
I read with great sympathy and appreciation your remarks in the Senate yesterday. The defence of the Minister that if he were to inquire into your case he must do so in hundreds of others only aggravates the position and justifies your action. There are hundreds of these cases of injustice. There is nothing which so destroys an organization as a sense of injustice and resentment against the wrong use of power. In Egypt I was appointed, president of a court martial. Divisional instructions contained a wrong charge, and the prosecutor was also appointed Judge-Advocate.
That is to say, the man who was prosecuting had at the same time to advise the Court as to the law. My correspondent continues -
I objected, and dismissed the charge. This was the work of Lord Massereene, of the English staff; and subsequently Colonel Linton and I were paraded before him, and rebuked, and informed that we were there to follow orders, and not to administer law or justice.
– And that is the Army Act ?
– That is the Army Act.
– It is only a letter from some fellow who is abusing everybody.
– But those things go on, and there is no control over them.
– Give the Committee the name of the writer.
– I do not intend to give the name.
SenatorRowell. - The honorable senator ought to do so.
– I do not think that would be fair. Senator Eairbairn tripped me in the same, way the other day.
– Any man, and especially a colonel, who writes such a letter should be prepared, if necessary, to substantiate what he says.
– I was put in a false position the other day. My cousin, Admiral Henry Tottenham, was on
Admiral Jellicoe’s staff, and commanded a squadron at the Battle of Jutland. Tn consequence of a change of tactics being introduced, Admiral Beatty took over command, and he made a clean sweep of all the staff officers.
– I draw the honorable senator’s attention to the fact that the time allowed him under the Standing Orders has expired.
– I am very sorry that again the absurd standing order should interfere with orderly and sensible debate. Honorable senators should seriously consider whether they should not prevent these interruptions of debate when the remarks being made are becoming most interesting. I attempted to address myself to the question before the dinnerhour, aud I said I was prepared to go to a vote at any time; but now, after the Minister (Senator. Pearce) has listened to a number of speeches, he must have obtained a very fair idea of the opinion of honorable senators, and I think he might very well withdraw the clause. I do not think there is any occasion for a fight upon it. If it is withdrawn, it will save a good deal of time.
– There is an amendment to be got rid of first.
– We can have a vo’te on the amendment. I have been looking into the Army Act, and I find that the Army Act of 1914 is the latest we have here, but considerable alterations have been made in it. I find that, from time to time, amendments have been made in the Army Act providing for conscription. In fie early days of the Act the amendments would provide for the conscription of certain undesirable classes, but duringthe war conscription in Great Britain became part of the Army Act. If I am wrong,the Minister for Defence will correct me.
– : No, it 3rd not. I think that conscription was brought in by aspecial Act.
– Yes, but it became an amendment of the Army Act. I have something to read from the Army Act on the question of enlistments wEich, I think, has not been altered. If from 1689 to 1899 enlistments in the British Army were carried out under the Army Act, it is not unreasonable to assume that at the present moment, by incorporating the Army Act in our Defence Act, we shall be adopting conscription as a part of the Defence Act, though the people of this country have turned down conscription on two occasions.
– No; that would be inconsistent with section 49 of the Defence Act, which says that members of the Defence Force who are members of the Military Forces shall not be. required, unless they voluntarily agree to do so, to serve beyond the Commonwealth. We have conscription within the Commonwealth.
– If it appliesto members of the Forces,, we are being asked to go in for conscription, not merely for members of the Defence Force, but of the general public.
– It is not proposed that the Army Act shall apply to any one except members of the Defence Force.
-Of course; bu I claim that the amended British Army Act makes provision for the conscription of the Civilian Forces, and we have nothing in our Act dealing with the compulsory enlistment of the Civilian Forces. It would not, therefore, be inconsistent with our Defence Act to apply the Army Act to the conscription of Civilian Forces.
– In the Bill before the Senate it is proposed to apply the British Army Act only to members of the Defence Force, and not to civilians.
– To get away from that subject, and not because of the Minister’s interjection, ‘but because of a ridiculous standing order which limits the time during which an honorable senator may speak, I wish to refer to a serious matter which, I think, the Minister for Defence is not aware of. I refer to the way in which the British Army Act provides for dealing with unlawful assemblies, rioting, and insurrection. There is a very fine distinction drawn between an unlawful assembly, a riot, and an insurrection. Not only does the Army Act deal with these things, but there are Court decisions which have become the custom of the Army, and we are asked to adopt all these things without consideration.
– A soldier is guilty of mutiny, not only if he takes part in a riot, but if he does not do all he can to repress it.
– I have again to thank Senator Foster for an illuminating observation. The soldier, under the Army Act, is held responsible, not only if he takes part in an insurrection, but if he does not use every effort to suppress it. The Army Act provides methods for dealing with public meetings which may be-, come boisterous, or riots which may become insurrections. If we wish to deal with these things, we should do so by Australian laws, made by an Australian Parliament for the Australian people. If time permitted I might read whole pages from the Army Act dealing with this one matter alone. Perhaps it would be as well to read one or two pages in order that the Minister might realize that the time has come for withdrawing the Government proposal.
– Let us have a vote on the amendment.
– To bear out my statement, I intended to read something concerning enlistment, attestation, and compulsory service; but I adopt the Minister’s suggestion, and will curtail my remarks. I hope we shall have a division on Senator Pratten’s amendment; but I warn the Minister for Defence against adopting a British Act which deals with a public meeting that may become an unlawful assembly, and a riot that may become an insurrection. I rose to point out that if we adopt this measure we shall, probably, by virtue of the provisions of the British Army Act, be adopting conscription. That is a policy which the people of this country have turned down on two occasions.
.- I have listened very carefully to the speeches that have been made on this important subject, and, while not agreeing with the extreme views put forward by many honorable senators, I have come to the conclusion that it would be inadvisable to incorporate the provisions of the Army Act in our Defence Act. At this period in our history we should do all that we can to popularize our defence system in the eyes of the people. I feel that throughout Australia there is strong prejudice against the incorporation of the Army Act, although I do not suggest that the Senate should always bow to public opinion, which sometimes is not based on sound premises. But there appears to be a feeling in Australia that the British Army Act in its administration is much more severe than is our Defence Act. Consequently, aswe have to rely upon the good-will of the parents of those lads who may be called upon to do their military training, it is desirable we should have their support with regard to the compulsory provisions of the Act. I have not the slightest doubt that members of our Defence Force would much prefer to work under an Act that had been considered and passed by this Parliament than under British legislation designed to meet the peculiar circumstances of the Mother Country. For that reason I intend to oppose the clause. I am anxious to see our defence system made as popular as possible in order that it may became thoroughly effective. The suggestion made, by the Minister, that if the clause is rejected two separate Bills may be introduced, one to deal with the administrative and the other with the disciplinary provisions of the Defence Act, is welcome, and, although this course may take time, I think it will be time well spent. I do not accept the extremistview that have been expressed concerning the British Act. I do not fully- understand it. I doubt if any honorable senators know it in all its ramifications. We are, therefore, indebted to those honorable senators who were active members of the Australian Force in the war for their contribution to this debate, because thsy have had experience of its working. However, I am sorry that some of the statements have been made, because it is our duty to appreciate the wonderful work accomplished by the British Army under that Act.
– It is just as well to tear the scales from your eyes.
– I hope the scales will neverbe torn from my eyes to such an extent that I will hold in: detestation anything . thit has made the British Army so effective, as it has always prove to be on the field of battle. I am a Britisher first.
– But I am pointing out that it has attained to perfection in spite of these army regulations.
– That may be so. I am not in a position to question the statement, so I stall content myself by repeating that I am opposing the clause for the reasons given. I believe that if we pass the Bill as it stands, we shall, to a great extent, prejudice the success . of our defence scheme. That is my candid opinion. I want to popularize it so that the whole of our people will take pride in the fact that we have evolved, by Act of Parliament, a Defence Force of which any country might be proud, and in which every unit will be a willing helper.
– I do not know that, at this stage,I could contribute very much to the debate. It had been my intention not to speak to this clause at all, but reference has been made to an officer who served under me in France forover two years. The Jew, who subsequently got into the 14th Battalion, has been mentioned. Let me tell honorable senators a little about this man, so that they may have a proper appreciation of his qualities. It is true he was born in Russia. He came to Western Australia something over twenty years ago, and becoming a naturalized subject he joined our Military Forces. When war broke out he went on active service with the 16th Battalion.
– He was fighting for Australia; not against us.
– He was. He went out as a subaltern, rose to the rank of major, and got the Distinguished Service Order for his services on Gallipoli. He was my second in command in France from the time I took command. I have never served with a more gallant gentleman. Perhaps it was unfortunate that subsequently he was sent to the command of the 14th Battalion, because it is quite true that his method of speech was not quite orthodox. But this “illiterate” Jew, as he has been termed, could not only speak English well though with a flight foreign accent, but he could also speak French, German, Russian. Hebrew, and the Arabic languages fluently.
– He had a university education.
– It is true that he was not understood by the 14th Battalion when he went to command them. It is likewise true that his characteristics were slightly different, and that he had personal peculiarities which are not general amongst Australians.
– Personal peculiarities are present in this chamber, too.
– Was he able to go into the line ?
– I am coming to that. Just after he got command of the’’ 14th, they went into the battle of Messines, and anybody acquainted with the Messines Ridge will know that it was so cut up that there was hardly a square inch that was not a hole or adjacent to a hole. When crossing the ridge Colonel Maragolan fell into one of the holes and sprained his knee, with the result that he was sent away to the hospital, and away from the 14th Battalion. Of course, he could not get up to the front line. How could he with his knee swollen to about four or five times its normal size ? I saw it myself. Subsequently he was invalided out of the Austraiian Imperial Force on account of the injury to his knee, but he did not want to go away while his battalion was still in Messines, as he was so anxious to make a success of his command. ‘ I know that Senator Elliott has not deliberately misinformed the Senate with regard to this matter. But he did not know all the facts. I do. I have no hesitation in saying that this “ illiterate “ Jew is very highly educated; he is a very gallant soldier, and a most loyal and conscientious’ man. Subsequently, when his knee got better - it was never completely well, and is not now - the British Army authorities applied for him to take command of the Jewish Battalion that was raised in England, and he commanded the 39th, and subsequently the 38th Royal Fusiliers in the last year of the war. Moreover, the last time I heard from him - he writes to me occasionally - this “illiterate” Jew, as he has been termed to-night, was the Military Governor of Jerusalem. I am sorry to have to correct Senator Elliott’s statements concerning this gentleman. He was loyal to Australia and loyal to me. I have the greatest admiration for him, and I should consider myself contemptible did I not stand up for him to-night.
Senator VARDON (South Australia) [8.521. - Several times during the course of the debate I have been on the point of rising to speak, only to find that some other honorable senator has voiced my opinion on the clause. I cannot, however, allow it to pass without stating that I am opposed to it, because I know nothing whatever of the British Army Act beyond the opinions I have heard expressed by other honorable senators. I feel, therefore, that I cannot vote on this clause to apply to our Defence Forces an Act of which I know nothing. The Minister for Defence (Senator Pearce) stated that several other of the Dominions had applied the Act to their local Forces, and I think it probable that members of those Legislatures either had an opportunity of studying the provisions of the Army Act, or else they were prepared to accept the view-point of their Ministers. That course would be wrong, in my judgment, and I cannot accept the Minister’s suggestion that in connexion with some other measures, say the Navigation Act, we have incorporated legislation of the British Parliament.
– As a matter of fact,, that Act makes reference to and incorporates certain sections of the Merchant Shipping Act.
– Had I been in the Senate, I would have required to make myself fully acquainted with the British Act before agreeing to its incorporation in an Australian Statute. It is for such a reason that I intend to vote against the clause.
– There is a considerable power of intelligence in the Senate available to be exercised upon military .matters, i For that reason I have preferred to play the role of a close listener. I have heard several very fine statements to-day, but in contrast to those, I have just had to listen to utterances of a different kind by Senator Elliott. While he was speaking, I was not aware that the honorable senator was referring to one of the most honorable gentlemen who could be found in any part of Australia, namely, Major Margolan I happen* tohave had a very close intimacy with that gentleman for the past ten years; and I am bound to say that, if Senator Elliott’s statements generally, in connexion with all other matters upon which, he has spoken in this chamber, are as far removed from the. facts as his comments concerning Major Margolan then, his every word ought to be discounted and discountenanced by the Senate.
– What do you know of the facts?
– I know many of them ; I have heard many moreof them. Unfortunately, I have not Margonlan’s letters with me to-night; they are a long way from here. But I havecorresponded with him, and, from my personal knowledge of thu man, I will say, without fear of contradiction, that there was never a more “loyal or more courageous gentleman. Never would he shirk any duty that called to him for the sake of Australia. Although he was a Russian, he was true to the very core to the. country in which he had been naturalized. He, with another very fine fellow, similar to himself in almost every characteristic, left ‘ Australia with our Forces. The other died in the service of this country. Mal-golan lives to-day, I am pleased to say; and I am sincerely sorry to think that one who occupied the honoured rank of a general in the Australian Imperial Force, and who now is an Australian senator, should have employed such remarks as have been heard this evening relative to a man of the calibre of Major Margolan. I trust that, in future, the honorable senator will choose a different type of subject for his observations.
.- I have listened to the attack of the honorable senator upon myself. He has not adduced a single fact in contravention of anything I said.
– I did not need to. Your statements had already been refuted.
– Senator! DrakeBrockman has denied certain statements; but Senator Henderson had no evidence whatever to advance. The remarks made consisted merely and purely of a personal attack.
– Is the honorable senator referring to his own remarks concerning this absent soldier?
– I made no mention of names at all.
– It was quite clear whom the honorable senator meant. This officer was identified at once.
– Does the honorable senator deny that it was Margolan to whom he referred?
– I do not, since his name has been mentioned. The fact remains that it was most unfortunate that the Commanding Officer of the Australian Imperial Force should have sent a foreigner, a stranger, to take over the command of a battalion from a man of the type of Captain Jacka.
– Order ! I do not recall the name of this officer having been referred to during my occupancy of the chair to-day. I would remind Senator Elliott that his references to this gentleman must be directly connected with the amendment. Military reminiscences at large cannot properly be attached to the consideration of a matter such as is now before the Committee.
– I was replying to an attack on myself by Senator Henderson.
– I was speaking in behalf of one who was not present to defend himself.
– My statement was pointed .at the fact that the regulations originally provided for the redress of wrongs could be defeated by the introduction to battalion commands of outside officers. In view of the attack upon myself, I desire to make it perfectly clear-
– In view of the attack which you made on another.
– I emphasize that I mentioned no names, and that the name . would not have been known but for Senator Drake-Brockman. Altogether, it was a most unfortunate experiment. Australians are not intolerant, but these Australians resented the introduction of a foreigner, a man from another regiment, to take command over them. Possibly, they were in the wrong; but they were convinced that everything they told me was correct. If they have misled me - I say this in the light of. Senator DrakeBrockman’s statements - they have done so innocently without doubt, and will any honorable senator say that they deliberately lied to me? Whether the character of Major Margolan was such as has been described is beside the point.
– The men who went away with him would have followed him anywhere.
– It was a pity he was not kept with them, instead of being transferred.
– Did you know the major ?
– I have never met him. I will only add that the incident threatened to cause one of the most serious mutinies and one of the greatest disasters in the history of the Australian Imperial Force. As I see matters now, following the explanation which has been given, it all arose owing to a misunderstanding. The men and officers of that battalion were in a suspicious and jealous mood. As they saw the facts, they had a man thrust upon them; and, apparently, by a strange coincidence, he sustained an accident which prevented his going into the line.
– Does not the honorable senator think there was a responsibility placed upon him to be sure of his statements before he uttered them as facts in this chamber?
– I am in the unfortunate position of not having been able to examine, on oath, the persons concerned.
– All the more reason, in my opinion, why the honorable senator should not have taken the responsibility of saying such things here.
– I cited the circumstances as an example of the nonobservance of the regulations, and of the failure to give those who were entitled to the chance an opportunity of making good. Senator Drake-Brockman has not refuted the facts concerning’ the man who succeeded Major Margolan, and who was ^ absent for two days at the battle of Polygon Wood. I know that the two incidents caused great dissatisfaction in the battalion. If the facts regarding Major Margolan however, are as have now been made known, I em sorry that I was led into error.
– You ought to have expressed regret for what you said of an absent man.
– The words proposed to be deleted from the clause, in the terms of my amendment, provide the crux to the whole position, in that their inclusion would impose upon our Australian Citizen soldiers, in a time of peace, the whole of the provisions of the Army Act. The Minister for Defence, who has been very fair, told the Committee that he wished the debate to proceed in a non-party manner, and impartially, so that he could sense the opinions of honorable, senators in regard to the subject-matter of the clause. Thirteen honorable senators, in addition to the Minister, have spoken. Twelve have expressed definite opposition to the imposition of the Army Act in times of peace; while the thirteenth If s not disclosed his attitude. After an exhaustive debate, I do not desire to waste time. The Minister for Defence knows why my amendment was moved, and why his suggestion that the Committee should vote for or against the clause itself was not agreed to. I urge the Minister to make some statement concerning his attitude upon the clause.
– i will do so after the vote has been taken upon the honorable senator’s amendment.
– Then, in drawing attention to the purpose of the amendment, I point out, again, that it means, “ Shall we or shall we not impose the Imperial Army Act, in time of peace, on the Citizen soldiery of Australia?” I claim the vote of every honorable senator who has spoken against the imposition of the Army Act. Otherwise, he will be stultifying the very views which he has expressed.
– Some honorable senators may vote against the amendment and against the clause also.
– Why not permit the Committee to vote, straight out, against the clause?
– I do not want to out honorable senators in an invidious position. If it is the opinion and desire that I should withdraw my amendment, I am willing; to do so.
– Hear, hear ! Then the Committee could proceed to negative the clause.
– In the circumstances I ask leave to withdraw *>y amendment.
– Is it the pleasure of the Committee that the honorable senator have leave to withdraw ?
– Then the Committee must proceed to divide upon my amendment. Whereupon, the Minister for Defence will ask honorable senators to stultify themselves in order that he mav save his amour propre And, if the amendment should be defeated - possibly by the narrowest margin - the Minister will probably say, “ I accept the consensus of opinion of the Committee as it has been indicated,” and will withdraw the clause.
– While on the subject of motives, why not disclose yours ?
SenatorPRATTEN.- My motive in that of the vast majority of constituents whom I represent throughout the State of New South Wales. I re-echo their sentiments in objecting to the infliction upon this young continent of many of the abuses that have grown up in the armies of older countries. As there has been an objection to the withdrawal of my amendment, 1 accept the position and ask honorable senators not to stultify their words by their votes.
; - I do not know whether the Standing Orders permit me to explain my reasons for objecting to the withdrawal of the amendment. I do not Want a straight-out division on the clause, but on the amendment. If the amendment is carried and the Government persist in going on, I have here a considerable number of amendments that I intend to move on this clause. Honorable senators will see the position in which I would be placed if the clause went to a division. My opportunity of making amendments would be gone, and I am not going to put myself in that position. I did not object because I was opposed to Senator. Pratten’s amendment, or because of any opposition to the Minister for Defence (Senator Pearoe). In view of the debate we have had, I think the Minister would be well advised if he withdrew the clause, because it would not be humiliating the Government. The Minister said early in the debate that he was not regarding this as a party matter. I would like to see a division on this amendment, because it is the essence of the clause, and honorable senators who vote against this amendment are prepared to include in the Defence Act of Australia the British Army Act. I think honorable senators will understand my reason for objecting to the withdrawal of the amendment, and realize that I was only conserving my right to move amendments.
– In view, of the statement just made by Senator Gardiner, that any honorable senator voting against this amendment will bo signifying his intention to apply the British Array Act to the Military Forces of Australia, I desire to say that I intend to vote against the amendment and also against the clause. I am sure (here are quite a number of honorable senators who will adopt that course. By voting against Senator Pratten’s amendment we are not voting for the application of the Army Act to the Australian Forces, but are _ merely signifying our intention of having nothing whatever to do with the clause, either as it stands or in an amended form. We want to put it right out, and; even if Senator Pratten’s amendment is defeated, we shall still be able to do it.
– My intention is similar to that of Senator Duncan. I shall vote against the amendment and also against the clause.
– I point out to Senator Duncan and Senator Guthrie that there is a possible danger in following the course suggested. First of all, if they vote against Senator Pratten’s amendment, and that amendment is defeated, the clause, with what is obnoxious to Senator Pratten, will still be before the Committee, and, after the clause is put, including those words, there will be no. opportunity of amending it.
Question - That the words proposed to be left out be left out - put. The Committee divided.
Majority . . . . 3
Question so resolved in the negative.
.- At the commencement of the discussion I inti- . mated that the Government did not desire to press this matter if they were not assirred of a sufficient majority. I recognise that in the defeat of Senator Pratten’s amendment there were some who voted against the amendment who are opposed to the clause as a whole, and in new of that I do not intend to proceed with the clause, but ask . the Committee, if they feel so disposed, to negative it on the voices, so that we can proceed with the discussion of the Bill. I am having the measure examined so that the other clauses can be amended in conformity with the decision which has thus just been arrived at, and before the Bill passes out of the control of the Committee these amendments will be submitted.
Alter section fifty-five of the principal Act the following section is inserted: - “66. The application of this Act shall extend to members of the Military Forces whoare serving outside the limits of the Commonwealth?’
.- Under section 49 of the principal Act, members of the Defence Forces and of the Military Forces shall not be required, unless they voluntarily agree, to serve beyond the limits of the Commonwealth and the Territories under its control. This clause does not abrogate section 49. Probably it may be the case’ at times that members of the Forces who will be temporarily outside the Commonwealth have volunteered to serve outside the Commonwealth at a time, whena state of war does not exist. At present, the Act only operates within the Commonwealth, except in time of war, when its application outside the Commonwealth is provided by sections 54a and 56. There are occasions when the Military Forces are outside the Commonwealth, and are not on war service or military service, as is provided in the Act, and on such occasions neither the Army Act nor the Defence Act will apply as it now stands. We therefore need this amendmentso that the Defence Act shall apply. To give an illustration, I may mention that we transport troops to a mandated Territory, and when they are being conveyed from, say, New Guinea, they will be outside the territories of the Commonwealth. Technically, a state of war still exists with Hungary, but if that should lapse the Defence Act or the Army
Act would not apply; and it is necessary that this provision should be inserted.
– We have been discussing a very important clause, and judging by the debate that has ensued, honorable senators have devoted most of their attention to that particular provision. The Minister has done a very good day’s work by bringing the matter to a division, and I would like to congratulate him on carrying outhis promise, and not making it’ a party matter.
To-morrow, I understand, we shall he dealing with the question of wool, as the Minister knows, a motion . is now under discussion in another place. Therefore, this ‘Bill will not come on again for discussion until next Wednesday, and as we have had little opportunity of considering subsequent clauses, I ask the Minister if he is prepared to report progress.
– This clause could go without debate.
– If it does the next one will have to be discussed.
– The honorable senator does not want to discuss clauses for the sake of discussing them.
– Certainly not; I have debated a number of clauses before this, and in a perfectly fair way, as I have only referred to those portions with which I do not agree. Most of our time has been devoted to clause 18, and as I do not like to pass clauses without carefully considering them, I again, ask the Minister if he will not report progress.
– I am willing, if honorable senators require further time to consider the Bill.
Senateadjourned at 9.28 p.m.
Cite as: Australia, Senate, Debates, 5 May 1921, viewed 22 October 2017, <http://historichansard.net/senate/1921/19210505_senate_8_95/>.