8th Parliament · 1st Session
The President (Senator the Hon. T. Givens) took the chair at 3p.m.,and read prayers.
The following papers were pre sented : -
Draft Mandates for Mesoptamia and Palestine as submitted for the approval of the League of Nations. (Paper presented to British Parliament.)
Treaty between the principal Allied and Associated Powers and Greece, signed at Sevres, 10th August, 1920.
Customs Act -
Proclamation, dated 9th May, 1921, prohibiting exportation (except under certain conditions) of wool.
Regulations amended. - Statutory Rules 1921, No. 97.
New Guinea. - Ordinances of 1921 -
No. 1. - Laws Repeal and Adopting.
No. 2. - Interpretation and Amendments Incorporation.
No. 3. - Judiciary.
No. 4. - Arms, Liquor, and Opium Prohibition.
No. 5. - Natives’ Contracts Protection.
Northern Territory. - Crown Lands Ordinance - Regulations.
Public Service Act.-Promotions -
War Service Homes Act. Land acquired in New South Wales at-
Balgownie; Balmain; Glen Innes; Mayfield, Parramatta; Teralba; Tempe.
– Following on the question I put to him a few days ago concerning the introduction of a Public Service Superannuation Bill, I ask the Minister representing the Prime Minister whether he is now in a position to give me any further information on the matter.
– The Senate and the honorable senator will remember that last week, in reply to the question to which Senator Thomas has referred, I said that a Bill had been prepared, and was under consideration by the Treasurer. In addition, I may say that a SubCommittee of the Cabinet has been appointed to go through the measure. I cannot add anything further at present, but if the honorable senator affords me an opportunity, I shall in the meantime ascertain what is the position, and may be able towards the end of theweek to say whether any further progress has been, made with it.
– I ask the Minister for Defence, in view of the fact that the cost of maintenance of the Royal ‘ Military College at Duntroon for the financial year 1919-1920 amounted to ?61,176, and the cost of the Royal Australian Naval’ College for the same period amounted to ?70,898, making a total yearly expenditure of ?132,074 ; and also in view of the fact that” we have thousands of highly trained officers who received their training at the war, will the Government in the interests of economy, taking into consideration the huge amount of money that might thus be saved, suspend for the next five years the operation of the institutions I have referred to?
– The answer is “ No,” for the reasons I gave when speaking on the Defence Bill.
Silver-Lead Mining Industry.
The PRESIDENT (Senator the Hon.
Four honorable senators having risen in their places in support of the motion,
– Recognising that the Senate desires to get on with its business, I shall be as brief as possible in bringing under the notice of honorable senators the position of the silver-lead mining industry,, a matter which is of urgent importance, not only to .those engaged in the industry, but to the Commonwealth of Australia.
– I rise to a point of order. I should like to know whether any question has been stated from the Chair which the honorable senator is discussing.
– It is not necessary that a question should yet have been stated. Senator Earle has given notice of his intention to submit a motion for the adjournment of the Senate, and I may presume that he does not intend to conclude his remarks without moving the motion. However, to protect the rights of honorable senators it would, perhaps,, be better if Senator Earle moved his motion before proceeding to address the Senate.
– I was just’ about to do bo. I move -
That the Senate, at its rising, adjourn until 10 o’clock a.m. to-morrow.
That should satisfy Senator Gardiner.
– I desired only that the business should be done in order.
– I know that the honorable senator is a stickler for correct procedure, and I bow to his wishes. I feel keenly the position of the silver-lead mining industry, because I was for a considerable number of years a silver and lead ore producer myself. The experience I then gained enables me to understand quite well the troubles of those engaged in the industry at the present time. As an ore producer I thought I was treated badly by ore buyers on the West Coast of Tasmania, but I realize from the experience of men working in the industry to-day that I was treated quite liberally. The importance I attach to the matter lies in the fact that if apart from the great block producers of Broken Hill, the smaller men engaged in the industry are not treated very differently from the way in which they are being treated at the present time,, the industry of silverlead mining must cease for all time in Australia. We all know that every great mineral discovery made in Australia, and I believe the same may . be said of every country, has originally been made by the enterprising worker, who has gone out with his pick and dynamite, and has made the discovery before capital has been invested to provide the machinery necessary to develop it. So it is by the initial work of ti© working miner that these discoveries are made, and’ it* is to him alone that the success of the mineral industry is due- Nearly all the mines of Tasmania have been discovered by ‘the man who went out on his own initiative, and if those who go out seeking to make these discoveries, or developing discoveries which have already been made, are not treated better, it is obvious that they will cease their enterprise, and that there will be in Australia no more of those mineral discoveries which are essential to Australia’s welfare. The production of silver-lead ore in Australia for the five years from 1914-1918, inclusive, has amounted in value to £23,355,797. I cannot get the actual quantities of lead, nor did I think it was necessary, but the State of Tasmania produced in those five years £621,008 worth of silver-lead minerals. Those figures will give some idea of the value of the industry. I shall not weary the Senate with the figures showing the yearly production. All I want is to impress on the Government and the Senate the importance of the industry, and the desirability of the Government doing everything they possibly can to improve and continue it.
The ore producers of Tasmania in particular are at the present time absolutely dependent upon the Sulphide Corporation for the disposal of their ores. The Government exercised a control over the disposal of ores during the period of the war, and a good deal of agitation was entered upon by the ore producers, particularly those of the West Coast of Tasmania, to be relieved from that restraint. They thought that if they had an open market, and all buyers were permitted, to come in and compete for their ores, the trouble would be overcome. ‘ I had grave doubts about it at the time, and told them so, but they were satisfied that they were right. Subsequently they got the open market, and now, in practice, they find that there is practically only one buyer. The condition that the buyers operate on is that they pay 80 per cent, of the present value of the ore contents. That is, if they buy tq-day, and silver is 2s. lid. an oz., and lead £24 a ton, they pay the producer 80 per cent, of the value of the contents of that ore. That is sampled and taken away,
and when the ore is finally disposed of the producer gets the 20 per cent, balance, less the cost of smelting- Their recent experience has been that, although the company were buying ores up to theend of 1920, they were not smelting; but they had an understanding with the producers that they should assess the actual value of the ore at the market price three months after resuming operations, which should have been about March. The ore which had accumulated during this period was held by the Corporation for a considerable time when the market had depreciated, with the result that the ore producers are now not only called upon to forfeit the whole of the 20 per cent, balance which was due to them, but arts also billed for a deficit of £7,000.
– You mean the balance which would have been due to them had the market kept upf
– That is so. Ore smelting is one of those complex questions which no one can really decide unless he has had a very extensive experience, and understands all about the business; but it certainly appears to any one connected with the industry that the charges now made by the company are exorbitant.
– Is that the Sulphide Corporation at Cockle Creek?
– Yes. The first charge, called the “base” charge, is £6 19s. 6d. per ton on all ore, then they make a charge of 1 1/2d. per oz. on ore up to 80 ozs. of silver per ton, and a charge of ls. 6d. per unit on all ore when lead is under £23 a. ton, and 3d. per unit for each £1 over £23 a ton.
– How much is a unit?
– It is 1 per cent, of’ the metallic contents. These make a charge on ore which goes 70 per cent, lead and 80 oz. silver of £12 14s. 6d. per ton, so the company apparently, no matter what the price of metal is, exact that sum per ton of lead and silver ore from the producer, plus freights and ordinary forwarding charges. The balance is returned to the producer, but if the ore is sold on a low market his returns are very small indeed.
I suppose it is not well to be too suspicious, but still the lay mind sees the possibility of a great corporation like the Sulphide Corporation being able to manipulate the market, if I may use the expression, to their own advantage in consequence of their subsidiary interests. So the ore producer, seeing the position in which he is placed, prays the Commonwealth ‘ Government through me today, that ari exhaustive inquiry may be made into this industry- and that he should be given some clear understanding. If the industry will not pay on its merits, of course he will have to get into something else. But if it is being despoiled by manipulation and unjust charges we ought to know it, and there ought to be some redress.
– How does the honorable senator make out that there is only one buyer?
– In practice there is only one there. There are a number of buyers of course, but still there is only one firm taking the ore from the West Coast of Tasmania. I do not know whether there are more buyers operating in any part of the Broken Hill block, which, of course, is the main producer of silver-lead ores in Australia.
– At one time tha high class lead’ ores used to be shipped away to Europe.
– Yes, to Germany. In the early days of the West Coast of Tasmania there were quite a number of buyers who competed with one another, and the deal which was obtained by the miners was pretty fair.
– I am inclined to think that the operations on the metal exchange have something to do with the position. 1
– I do not know about that.
– Has the Tasmanian Government. ever had1 Government smelters ?
– No. They owned a smelter at one time which they closed upon for a debt, but they never operated it.
– A good job, too.
– ‘Yes. I would not propose to erect Government smelters on any such isolated place as the West Coast of Tasmania, because it is not possible to ‘obtain all the plant for smelting, and the necessary ores are not available.
I desire to quote briefly from a statement uttered by the manager of the Sulphide Corporation, who, a short time ago, visited the West Coast of Tasmania and endeavoured to show the miners that they were giving them a fair deal. He said -
The corporation have not made any profits to speak of for a long time; and, further, that it had offered certain people to smelt at cost plus 10 per cent, for the use of the smelters, plant, and all equipment; but that offer was not’ accepted.
I have not consulted the Leader of the Senate (Senator E. D. Millen) in connexion with this matter, and I, therefore, do not expect him to make a statement this afternoon. I am, however, very desirous that the Government should give earnest consideration to the suggestion I am making that the Government should appoint an expert officer with the powers of a Royal Commission to make full inquiry into the smelting and handling charges imposed by the Sulphide Corporation, in an endeavour to ascertain whether the statement I have quoted’ is correct. If it is, we cannot do anything further, unless the Government, realizing that the production of such base metals as lead, tin, and copper is absolutely essential to the welfare of Australia, are prepared to purchase, even if it means holding the stocks for some time. Personally, while copper or tin is cheap, I would’ just as soon see a million pounds’ worth of such metals in the hands of the Government as I would see a million sovereigns in the vaults of the Treasury.
– Would not such a Commissioner have to probe the Metal Exchange to the bottom to obtain satisfaction ?
– I cannot say what is necessary.
– The Metal Exchange is only concerned in registering sales.
– That is not so.
– As protectors of the welfare of the Commonwealth, the Government should do everything possible to ascertain what is the matter. The manager of the Sulphide Corporation went on to say -
The profitable production of base metals in Australia is controlled in the first place by the London market, which, in turn, is greatly influenced by the United States of America, and finally determined by the world’s conditions. We consume such an infinitesimal quantity of raw metal that it may be said that we are entirely dependent upon the trend of affairs outside Australia as to whether we can or cannot produce at a profit under Australian conditions.
That leads me to wonder whether it would not be wise for the Federal Government to take into consideration the advisableness of acquiring a quantity of these metals which are not perishable, and are just as lasting as gold, and which must necessarily increase in value. We must not overlook the fact that minerals are becoming scarce and more costly to mine. There are thousands of miles of auriferous land in Australia, which, up to the present, are unexplored ; but, so far as we know, deposits of value do not exist. But those deposits which we know exist are becoming more expensive year by year to exploit, and necessarily metals must appreciate in value. It is a question of whether it would not be good business for the Federal Government to acquire a large quantity of these base metals in order to keep the industry buoyant.
– Surely the honorable senator does not suggest that purchasing lead at £24 per ton would be good business.
– That is a matter for consideration. We must not think that because lead was sold at £11 per ton for a considerable time that it is likely to be sold at that price again. At that period, thousands of tons were being produced at Broken Hill, Mexico, and other large mining centres, and we cannot fairly assume because it was sold at £11 that £24 per ton is an exorbitant price. I am not prepared to say if it would be good business for the Government to purchase at £24 per ton; but I think it is reasonable to suggest that the Government should step in when these three metals are at their base - if I may use that expression - to prevent a further reduction and to keep the industry alive.
– Free the trade - that is the trouble.
– From what?
– From restrictions here.
– Mr. Evans goes on to explain that the sales from the West Coast realized so much less than the amount payable at the time the samples were taken that the ore producers had been requested to refund £7,000.. Mr. Evans also referred to the extra cost of smelting, which of course means nothing to us unless the statement is supported by the opinion of an independent expert. He points out that in 1914 coke was 18s. 6d. per ton. and that in 1921 it is £2 12s. 6d. He mentions a number of articles -which are supposed to be used in connexion with smelting, and shows that the increases in some cases range from 60 to 80 per cent. He also states that the1 wages paid have increased from 8s. 6d. to 17s. 6d. per day, but I cannot believe that the wages paid by the Sulphide Corporation have increased by over 100 per cent, during that time. I do not know - and I am sure other honorable senators do not know - what quantities of the articles to which Mr. Evans has referred are used in smelting a ton of ore. These are points which need clearing up if we are to ascertain if the company is justified in imposing these enormous smelting charges.
This matter is of vital importance to a large number of people in Australia, and to a number of people on the West Coast of Tasmania. I am sorry that, at present, there is looming on the horizon one of the most serious industrial troubles, from the workmen’s point of view at any rate, that has ever occurred, at Lyell, on the West Coast of Tasmania.
– The men on the spot have shown that they have plenty of common sense, if they were only let alone.
– It is strange that the men did’ not take the matter into their own hands and insist upon conducting their own , affairs apart altogether from the union. From all I can learn from the published details, the men made a very good deal. They had secured themselves against any reduction in wages throughout a period during which the cost of living is falling and I think they assured the company that no increase in wages would be sought. The only concession made by the men apparently was that they would work one week 48 hours instead of 44. It appears, however, that the executive of the Australian 1 Workers Union, with which the miners are associated, refused to accept the agreement. Their action, in my opinion, constitutes one’ of the strongest arguments it would be possible to get against the One Big Union principle, and I think the men of Lyell will take it to heart. If anything happens at Lyell hundred’s of men who have put their all into their little homes will be absolutely ruined, because there is only one mine there and no other chance of employment in that district if work at the mine fails. I do not know whether the miners will or will not allow the situation to develop at the behest of men, themselves far removed from all the misery and suffering likely to ensue, but my advice to them is to manage their own affairs. It is perhaps true that some will seek employment in the Zeehan field, where there is a number of silverlead lodes, and their activity there may result in further discoveries; but if not, and if some effort is not made to induce the men to believe there is something better for them in the future than that which is being experienced at present, Uley may as well starve doing nothing as starve working hard. Consequentlythese developments cannot take place.
In the interests of Australia, and particularly in the interests of my own State, I hope the Government will seriously consider the position and see what can be done. I do not care what is done, so long as this mysterious question of the treatment of silver-lead ore is cleared up. An investigation may or may not show those engaged in the business that the cost of smelting is too high, or else prove that the companies are wrong, and then of course it will be necessary to take some steps to right the grievance.
– I think my colleague, Senator Earle, is animated by the very best of motives in bringing this matter under the consideration of the Senate and the Government, and he is well qualified to do so, as he was for a long time, as he has told us, resident on the Zeehan silver-lead field. But silver-lead is not produced exclusively at Zeehan. That field has been the largest producer of high grade galena that the State has known up to the present, and the important mining town of Zeehan has been built up in consequence of the prosperity which the silver-lead mining industry at one time enjoyed. I am not in the habit of disguising facts, and I must say that I am very much afraid we are up against another unpleasant fact like death and’ rent day, for instance. We are faced with a condition of things that no talk will explain away, but perhaps Senator Earle has suggested something which, if it will not do a great deal of good, may do something to remove the misunderstanding that exists in the minds of those who are engaged in the industry. My object is not to cover some of the ground that my worthy colleague has gone over, but rather to make it’ quite clear to the Government that the State of Tasmania has been no laggard in connexion with the conservation of the interests of the silver-lead miners. Senator Earle will recollect that during the time he was Premier of Tasmania the State Parliament was very solicitous to extend all the assistance it possibly could to the silver-lead industry on the West Coast, and I have a lively recollection of having assisted to vote moneys in connexion with the smelters near the town of Zeehan. I remember being a member qf a Select Committee appointed by the Tasmanian House of Representatives to inquire into the industry on the West Coast. I think the chairman of the Committee was ex-Senator Mulcahy, who was deeply interested and who spent a very great deal of his own means to investigate the resources and bring about the development of the industry of the West Coast. The Tasmanian Parliament has voted many substantial sums to the silver-lead smelting works at Zeehan. It has even owned a silver-lead mine, and, like others, at one time I believed that the smelting companies or buyers did institute returning charges higher than the industry ought to have been legitimately called upon to bear. But in all fairness I must say I think that ii the State-owned mine as a producer of silverlead ore submitted to these charges - I do not think it would tamely submit if the charges were manifestly unfair or exorbitant - it is not likely that anything particularly sinister will now be disclosed in connexion with the operations of the smelting company.
– I am not so sure about that.
– I do not think that the State silver-lead mine has totally ceased operations even at the present time.
– It is being worked on tribute.
– At all events work is being carried on, and to that extent it is still a live concern. Far be it from me to say anything that will prevent a practical attempt to right the present position. I think honorable senators will remember that less than a year ago the Tasmanian representatives in this Parliament were insistent in approaching the Prime Minister (Mr. Hughes) in order to get the embargo on the export of silver-lead ore removed, and up to the present it has not been reimposed. The measure was in some degree efficacious, and I hope that what Senator Earle has very properly suggested to-day may be efficacious in another direction. I hope it may result in the removal of misunderstanding, because when misunderstandings in connexion with economic and industrial operations are removed, a slight rift in the clouds always indicates the possible return of prosperity. I do not believe that anything better than the removal of the embargo on the export of silver-lead ore could have been done at the time. Senator Pratten has indicated that there are other restrictions. How far these may operate to the detriment of the producers I’ cannot say. Certainly if there are any restrictions which operate detrimentally to the silver-lead mining industry, now in the name of the Lord and in the name of the Commonwealth of Australia is the time to remove them. I do not for a moment contend that there are restrictions the removal of which would place the industry in a better position. But if there are, I ask the Minister to report the fact at the earliest possible moment to the head of the Government with a view to their removal. Only the other day my colleagues and I had representations made to us in connexion with this very matter. Thereupon I consulted Senator J. D. Millen and also Colonel Bell, who is the representative in another place of the territory in which this particular field is located. We decided that it was exceedingly difficult to indicate anything of a practical character in the way of relief, and I took the responsibility of wiring to one of the three gentlemen who had written to us stating that with all the best will in the world we were confronted with a position of great difficulty, because we were up against a major force. Circumstances were too great for us, and circumstances, I » fear, will prove to be too great to permit of the prosecution of some of the other industries of Australia during this time of stress. I am sorry to make this statement, but the facts must be faced. I cannot say precisely what is in the minds of the gentlemen who are very properly doing all that they can to retain for the town of Zeehan whatever measure of prosperity it is possible to retain. One of them wired to me the other day, and asked me to hold my hand in respect of any intended action. But as a matter of fact we were in a quandary as to what action we could take. These gentlemen form a kind of local committee. To my own personal knowledge one of them was for some time the manager of the State silver lead mine, whilst the other two are public spirited citizens. They have requested us to await further advices from them before we proceed farther. I support Senator Earle in his desire to have these smelting charges investigated.
– The honorable senator means the charges made by the Sulphide Corporation - not the accusations ?
– Yes. I understand that the Sulphide Corporation invite such an investigation.
– They do not say’ that, but they offer the use of their plant if anybody can run it.
– That is prima facie evidence that their operations are not very lucrative at the present time. But if an investigation of the charges made by the corporation - I do not know that “any such investigation could take place unless the corporation were a willing party to it - would result in the clearing away of any misunderstandings which exist, I say God speed to it: At the same time I frankly confess that the situation is one with which we are likely to be confronted in Australia for some time, and in regard to which nothing -that human ingenuity can suggest, nothing that human effort can. accomplish, is likely to achieve very much good. Yet this is not a time when we should tamely submit to the decrees of fate. If anything can be done in the direction which has been suggested, by all means let it be done, and in that spirit I support the action of Senator Earle.
– I have listened very attentively to the speeches which have been made upon this motion, and certainly the miners upon the west coast of Tasmania have my sincere sympathy. So far as I have been able to gather from the observations of Senator Earle the producers of silver-lead ore complain that a charge of 10 per cent, over and above the cost to the Sulphide Corporation is being made. The honorable senator seemed to indicate that possibly that cost is higher than the actual expenditure.
– The miners also think that the corporation should not hold the ore unless they become responsible for its depreciation in value.
– These two matters Tequire clearing up, and Senator Earle has suggested that the Government should appoint a Royal Commissioner to look into the Sulphide Corporation’s accounts. I understand that that corporation have offered to permit an examination of their books by any competent authority.
– I. do not know that.
– The Sulphide Corporation are an honorable company, and will, I am sure, have no objection to the adoption of that course. I would, therefore, suggest that instead’ of the cumbrous method advocated by Senator Earle, overtures be made to the Sulphide Corporation to allow two representatives of the men who produce the ore to look into the costs to which the corporation is subjected. That would satisfy the miners as to the actual expenditure that is involved in the treatment of these ores. When metals fall, those interested in their production naturally feel aggrieved. But I am convinced it will be found that the Sulphide Corporation are perfectly willing to have their charges thoroughly inquired into. The extract which Senator Earle read from a statement made by their manager showed that they are willing to meet the producers in ‘ every way that they can. The adoption of the course which I have outlined would save valuable time and would obviate the necessity for the appointment of a Royal Commission.
The other question raised by Senator Earle relates to the delay which is experienced in the treatment of these ores. To a great extent, this is due to the strikes which have occurred. The question of exchange may also have been a contributing factor. If the Sulphide Corporation cannot get their money from the Old Country, obviously they cannot pay their way here. If these things were clearly explained to the producers, -with whom I sympathize whole-heartedly, and if an opportunity were afforded their representatives to look into the charges which are being made by the Sulphide Corporation, it is manifest that a great deal of both time and money would be saved. ^
– Senator Earle has already indicated that he did not give me any notice of his intention to bring this matter forward. I take no exception to that, and mention it’ merely as an explanation of that complete ignorance of the matter on my part which may . possibly become obvious as I proceed. There are two or three aspects of the question to which I should like to direct attention. First of all, whatever the position may be, in no sense can the Government be charged with creating it.
– That is so.
– It is a common habit, and has become almost a fashionable pastime, if anything is wrong - a refusal of cows to give the customary quantity of milk, or of crops to grow without rain - to blame the Government for it. If the Government do anything they are wrong, and if they abstain from doing anything they are equally wrong. Whatever the right or wrong of this matter, the Government at least are clean-handed in regard to it.
– It is delightful to hear of one case in which the Government are not wrong.
– It’ is no doubt very distressing to Senator Gardiner. If the honorable senator were genuinely looking for cases’ in which the Government have done right, they are all around him ; but I fear that he is temperamentally unfitted to see them. I gather from an interjection that there is a feeling that a regulation which deals with the industry under consideration in some way works to the detriment of those engaged in it. The only regulation affecting lie industry which is to-day in operation is one which provides that those who make a sale must register that sale. Senator Bakhap has already mentioned the fact that some time ago the producers claimed that they should not be under an obligation to sell to a particular company.
They pleaded for an open market, and said that if they were given a free market they would be quite all right. They contended that if local buyers had to compete with foreign buyers, those engaged in producing the ores would get the world’s fair value for what they produced. That was provided for, and then, as Senator Earle has pointed cut, in spite of that, those engaged in the industry found that there was still only one buyer.
– I quite expected that at the time.
– The Government did then what they could to meet the wishes of the producers of these ores.
– Hear,, hear! The Government did all they could.
– They not only did what they thought right, but they did it at the suggestion of the men engaged in the industry.
I think that Senator Bakhap put the correct view of the matter. We are up against the condition that the value of the product is falling, because the cost of treating it has risen. That inevitable result is before the Senate and the country, not merely in connexion with the silver-lead industry, but in connexion with many other industries. There hasbeen a suggestion that some sinister influence has been at work through the Metal Exchange, but I should like to say that if those on the Exchange had been animated by the most sinister feeling towards the producers of silver-lead ores, they could not affect them in the slightest degree by any action which the Metal Exchange is entitled to take. All that is asked of the producer is that if he sells his product, he shall register his sale. He is not required to ask the Metal Exchange whether he may sell his product. In the same way Senator Earle does not require to ask the police if he may keep a dog, but must register it if he keeps one. Metal producers are free to make sales as they please, but they are required to register the details of those sales. I am therefore quite unable to understand how the members of the Exchange can influence for good or for ill the operations of the producers of silver-lead ores.
I should like to raise the question whether this is a matter in connexion- with, which the Federal Government ought to be appealed to. We are being asked to say whether the charges made by a certain company are fair and reasonable.
– The matter is one which affects all the States, and even the Northern Territory.
– That is so. We are being continually urged to try to get back to normal conditions, and I question whether in ‘normal times it would be the duty of the Commonwealth Government to inquire into these matters. If upon inquiry we found that the charges were not reasonable, where would we stand? Suppose that We said that the Sulphide Company ought to charge £1 less. That would not help us very much, if the Company replied that it would not pay and they preferred not to do so. I share the somewhat pessimistic but comm on sense view expressed by Senator Bakhap. We are up against one of the consequences due to a period of great depression, and those interested in this industry must cease their operations or in some way or another adjust the producing cost to meet the situation. I can offer no suggestion to meet the difficulty, nor can I give- a definite reply to the request for an inquiry. I shall bring the remarks of Senators Earle, Bakhap, and Fairbairn before my colleagues, and will make myself a little more acquainted than I profess to be now with what is taking place in the Department in connexion with this matter. If out of that some course of action may suggest itself which is likely to benefit the industry, honorable senators will understand that the Government and I have but the one desire, and that is to take any course which may promote and stimulate any of our industries, and particularly the primary industries, upon which the prosperity of Australia so much depends at the present moment.
– I wish to say a few words lest I should be misunderstood as not having a great deal of sympathy with Senator Earle in connexion with the matter which he has brought before the Senate. The Minister for Repatriation (Senator E. D. Millen) seems to think that I would glory in the troubles of the Government, and would like to attribute to them things for which they ought not to be blamed.
– The honorable senator would try to create trouble for the Government.
– Though. I am in opposition to the Government, I do not take up that position. When I heard Senator Earle speaking of the increased cost of doing the work of . smelting, my mind Went back to a Tariff introduced by the Government twelve months ago which increased the cost of everything. If the cost of living is made high from any cause, whatever, wages must go up. Whether high wages with a high costof living is beneficial or not cannot be discussed on this motion. Only last week I said that the wool industry was “on the rocks” as managed by private enterprise, and those engaged in it rushed to the Government for assistance. I will not say that the smelting and mining industries are “on the rocks,” but they are getting into shallow water, and already there is a call to the Government. Though Senator Earle recognises how serious the position of the silver-lead mining industry is, he does not appear to be clear that anything definite can be done to improve the position. The only definite . suggestion that the honorable senator made was that there should be an inquiry.
– Quite so.
– Throughout the world the same kind of thing is happening. The war is over, during which business methods and trading methods received a fearful shaking, but we cannot quickly get back to normal conditions. In my view, the only beneficial offer that can be made by the Government is to inquire seriously and deeply into the question whether in Australia, with our few people and immense resources, the time is not rotten ripe for a change from the present system of production by private individuals for profit to production by the community for use.
– There would be verylittle silver-lead ore used in Australia, and very little production would suffice to meet our needs.
– I recognise that not much would be used in Australia, but if we could produce it cheaply and economically, and employ our people from the most skilful engineers to the miners in its production, we might exchange it abroad for things required in this country, such as agricultural machinery and other manufactures in the - production of which we are not yet in a position to compete with America and other countries.
– But the honorable senator suggested that we should produce for use.
– Yes, and not for the profit of individuals.
– For the Socialistic State?
– To suggest that it is my idea that production in Australia should be confined only to what we could use here is as wide as the honorable senator could get from my real idea. We could exchange what we produce for things which we require to use, and which are produced in other parts of the world.
– Then we would , be producing for profit.
– For the use of the whole community, and certainly -not for the profit of private companies, who, in many instances, by their over-reaching have crippled in their infancy many undertakings which might have been useful and productive enterprises for this country. I do not suggest that the mining industry has to bear the whole burden of the £30,000,000 raised by the Tariff, but it has to bear a very heavy load, and no one will contend that we can protect goods which must find their market outside of Australia. Most of the lead, silver, and zinc which we produce must find a market outside the Commonwealth.
– The consumers are asked to pay very . smartly for it.
– In what way are the consumers asked to pay ?
– Senator Pratten is supporting the honorable senator’s view with regard to the Tariff.
– I am quite sure that I would not be permitted to enter upon a Tariff debate.
– It, is the Tariff combination of Senators Pratten and Gardiner that is amusing me.
– I am afraid that the suggested ‘ coalition would split on that rock. There are fundamental differences ofopinion ‘which would’ pr event Senator Pratten and I pulling together.
We are told that the silver-lead mining industry is in . a bad way, and that the actual workers engaged in it feel that they are not getting a fair deal, because some body is charging them too much. That is not a question for discussion in this Chamber, while we continue the system of making what we can,canyhow we can, within the law, which is private enterprise as we have it to-day. We cannot complain if one private enterprise makes a little more money out of its workers than another. I know that the wool business was brought before the Senate, and the wool people did their work well. I congratulate the wool experts on the way in which they bluffed the English market. They have got a better price already.
– I ask the honorable senator not to discuss the wool question.
– May I not refer to it as an illustration by suggesting that as last week the wool interests succeeded in getting a resolution passed by the Senate which has already had its effect on the English wool market, so possibly the discussion of the position of the silver-lead industry on the motion of Senator Earle may have the desired effect in the quarters he desires to influence? But if this Parliament is to be used for such- purposes I misunderstand its purpose altogether.
I rose merely to express my sympathy with Senator Earle. I realize the importance of the industry to which he has referred. It is more important to the people I represent than to any others in Australia, because the great silver and lead-producing centres are in New South Wales. The honorable senator might strengthen his position in replying to the debate. -I listened for something in connexion with which I could help the honorable senator, but he failed to put anything forward of a sufficiently definite character to enable me to give him very much assistance, willing as I am to assist in connexion with ‘anything affecting the mining industry, and particularly the silver-lead industry.
SenatorEARLE (Tasmania) [4.4].- I desire . to thank the Leader of the Senate (Senator E. D. Millen), who has intimated that serious consideration will be given to the matter I have brought forward this afternoon, and that every effort will be made to see. whether a full inquiry into the industry cannot be carried out. That is all I ask for. If the Government can see their way to have an investigation ‘by an expert officer into thecost ‘ of ; smelting, and to ascertain whether the’ considerable increases which have been made in smelting charges are justified* the . purpose I had in view in directing attention to the matter will have been served. ‘
– The honorable senator understands that I did not give, a definite promise to have an inquiry.
– That is so.I assume that the Minister will ‘consult with his. colleagues and ascertain whether it is practicable to make such an investigation as I have suggested. I cannot ask for more.
– What is wrong with my suggestion?
– It is a question for experts to decide It is all very well to suggest that two miners should make an investigation but an inquiry into so complex an operation as silver and lead emolting should be carried out by an expert acquainted with the treatment of ores, who should also have some knowledge of accountancy and be able to fully inquire into the whole industry.
– Could not such a man be chosen in the way I have suggested without any interference by the Government.
– If such a man could be chosen, I have no doubt his con- ‘ elusions would have a great influence upon all concerned.
-Would the honorable senator not require some one to say whether the smelting industry has been interfered -with by . the Tariff, and has not in consequence been enabled to obtain uptodate machinery ?
-These Free Traders die very hard, and we must not be too severe on them. I ask the leave of the Senate to withdraw the motion.
Motion, by leave, withdrawn.
Pensions to Widowted Mothers
asked the Minister for Repatriation, upon notice -
– The answers are -
A pension may he made available to the children of a widowed mother of a deceased soldier son where it can ‘be shown that during the period of twelve months ‘prior to his enlistment such children wore dependent upon the soldier for their maintenance. 2. (a) To the widowed mother of a deceased unmarried soldier son from £2 to £6 per fortnight, according to rank.
In addition to the above, the Commission may make available in special circumstances to the dependent widowed mother of a deceased soldier son an allowance to bring her total income up to £3 10s. per fortnight.
For the four children of a widowed mother of a deceased soldier son an amount according to the proved degree of dependence upon the deceased soldier son, which, however, would not exceed that payable to tha children of a war widow, viz.; £2 15s. per fortnight.
In Committee (Consideration resumed from 6th May, vide page 8188) :
Section 80s of the principal- Act is amended by omitting sub-section (2) thereof and inserting in its stead the followingsubsection ; - “ (2) For the purposes of this section anyribbon appropriate to he worn with a military decoration shall bc deemed to bc a military decoration.”
Section proposed to be amended (see page 8175).
Upon which Senator Pearce had moved as an amendment -
That the wordB “by omitting’ sub-section (2) thereof and inserting in its stead the following sub-section: - (2)” be left out and the following words inserted in lieu thereof : “ (a) by omitting from sub-section’ (2) the words *a female relative’ and inserting in their stead the words, the mother or widow’;
by adding at the end of that subsection the words, ‘under such conditions as are- prescribed ‘ ; and (c). by adding at the end of the section the following sub-section:- ‘(3)”’:
And which, amendment had been, amended by the insertion after “ mother in paragraph a- of the words “foster-mother step-mother.” ‘
Amendment (by Senator Gardiner) again . proposed -
That after . the word “step-mother” in paragraph (a), as amended, the word “sister” be inserted.
– - I intend to move also the insertion of the word “father,” because I think a father is entitled to wear on his watch-chain any military decoration won by his dead son. With a view to expediting business, will the Minister consider the question of allowing the Act - to remain as it is? In making that suggestion, I am. giving way a good deal. in my views, but I wish to avoid a prolongation of the discussion such as we had on Friday.
– I cannot see my way to accept Senator Gardiner’s suggestion. I did not bring forward this clause thoughtlessly or without ‘the fullest and most careful consideration. It seemed to me that it was a misuse of a military decoration to allow it to’ be used in this way. We have made full provision for the female next-of-kin to have a suitable badge, which is publicly recognised as that of a woman who has lost her husband or son or brother at the war. I . venture to say that that badge is looked upon by the people of Australia with as much respect as any military decoration. It excites great sympathy in the breasts of Australians, who know quite well what it. means, and re-‘ spect it accordingly: Military decorations, however, are given to certain persons for feats performed in battle or military services rendered, and it is a misuse of them to allow them to be worn by anyone else. In deference to the strong wish of the Committee, I have agreed that their use should be extended to the mother and widow, but I do not think we should go beyond that. The fostermother and step-mother have also been included, because they stand in the same relationship, and are often the only mother the lad has known.
– So is the sister. ,
– I cannot accept the suggestion’ to extend the clause any further, seeing that, in the Way I have indicated, we have given full recognition to the claims of other female relatives.
– I am sorry. the Minister for Deence (Senator Pearce) has not seen fit to withdraw the clause. While I quite see the Minister’s point of view, I think the majority of honorable senators favour close female relatives being allowed to wear a deceased man’s decoration if they so desire. The proposal brought forward by the Minister originally was to cut out the right of any female relative to wear a deceased man’s decoration; but he has since agreed to allow a mother or widow or foster-motheror step-mother to do so. There does not seem to be a very great difference between us now. If the section were allowed to stand as it appears in the existing Act, without any amendment whatever, it would read -
Nothing in this section shall prevent a female relative of the person upon whom a military decoration has been conferred from” wearing the decoration after the decease of that person.
That seems practically to* fulfil the desire of the Senate, and I am sorry that the Minister has not seen fit to leave things as they were. It would save a considerable amount of time, because further discussion of the matter will, I think, be merely splitting hairs.
– The Minister’s explanation would have been satisfactory if he were sticking to the clause as he first introduced it, after -giving it the “careful consideration” of which he spoke. But the Committee have extended’ it some distance beyond the length to which the Minister’s “ careful consideration “ brought him. I am not asking him to go any further in the direction in which I wished him to go, but merely urge him to go back to the existing Act, which was passed in 1917 at his instance, and, presumably, after he had given it “ careful consideration.” The- attitude of the public towards military decorations is . very strange. I find among certain sections of the military class a desire to look on a decoration won in the war as sacred, and fit only to be locked away in a box and kept out of sight. In New South Wales I find quite a desire on the part of certain people to compel the exhibition of guns and other war trophies in school areas and other places which are already too small and crowded. This has created quite a public question in my own State. If what is wanted is something to spur the patriotism and inspire the courage of the young, surely a medal won by a boy and worn proudly by his sister as a brooch or pendant will serve that purpose. There can be no reasonable objection to it. I cannot see any difference between the desire to force guns and other waT trophies on a community that does not want to have them and the desire to exhibit publicly medals won in the war.
– I thought the guns were being kept from the community which did want to have them.
– One section of the community does want to have them, and another does not. The Minister wishes to keep from the view of the community, who want to see them, the medals won by brave fellows at the war. To my mind,, the two things are on exactly the same footing, but are being viewed from different stand-points. I can quite understand the military view that decorations, such as medals, are peculiarly the property of the military. They may have been won by a volunteer, who did not care a snap for the military.. All that troubled him was that his country wanted somebody, and he volunteered. He won a distinction which the other fellows could not win, or did not have the .chance to win, and the other fellows are trying to take fine care that the decoration which he won shall never be seen. They want to keep it locked up. When the amendment now before the Committee is disposed of, I shall move to insert the word “ father,” and afterwards the word “ brother.” I am quite in earnest in this matter, as I think all these relatives should be allowed to wear the decorations of a deceased man.
.- I move-
That in paragraph (o) after the word “mother” the word “father” he inserted.
In support of this amendment I do not think it is necessary to repeat what I said on Friday last, because whatever argu ments are applicable in the case of sisters apply in the case of fathers. To use what is a common Australian term, the “ old man “ is naturally very fond of the distinction won by his son at the Front, and for some time many fathers have been in the habit of wearing the medals won by, their sons on their watch-chains. I hope that the Committee will not decide to provide by legislation that this shall no longer be allowed.
– Has the honorable senator ever seen such a medal worn on a watch-chain ?
– I have.
– Would it. not more likely be kept in the home ?
– It is purely a matter of. taste; and if we allow the distinction to be worn by the mother, why should not a similar right be given to the father? The term “ What is the matter, with father? He is all right,” could very well be applied, in this instance, and I cannot see what objection the Government can have to my amendment. If fostermothers and step-mothers- are to be allowed to wear a soldier’s badge, a father should have the same right.
.- I move- ‘
That in paragraph (a) after the word “mother” the word “brother” be inserted.
Notwithstanding the decision which hasalready been arrived at by the Committee^. I intend to persist in recording my views-‘ on this matter. It is quite probable that”, the party to which I belong will before” long have the opportunity of administering the proposed law, and when that time, arrives I venture to say that very drastic changes will be made, because there is something in this which permits conscription, and the whole question will not then rest with the military authorities.
.- I move -
That in paragraph (n) after the word “mother” the words “or any female relative” be inserted.
I do not think it necessary for me to debate the proposed amendment, because its reasonableness must be apparent to the Committee.
.- On Friday last I gave notice of an amendment, and as I believe this is the place in which it should be inserted, I move -
That nothing in this Act shall prevent a military medal or decoration being worn on a watch-chain or as a brooch or pendant.
I do not wish to detain the Committee by entering into a lengthy discussion, and have merely moved this amendment in the interests of persons who are desirous of wearing a military decoration in the manner set out in the amendment, provided, of course, that such persons do not claim to be those on whom the decoration was originally conferred. I cannot see that there is any difference between exhibiting trophies won by brave men., and displaying medals won by individuals. The principle is the same, and the only difference is that trophies are exhibited in school grounds or public parks, and medals are displayed by people who cherish the names of those who won them. Knowing the feeling of the military authorities, and the possibility of misunderstanding arising, I quite realize that there must be a strong hand to prevent impersonation, but I do not think such a contingencywould arise in this instance.
– The honorable senator’s amendment will, if agreed to, appear as paragraph d.
Question - That the amendment be agreed to - put. The Committee divided.
Majority . . . . 18
Question so resolved in the negative.
Amendment (Senator Pearce’s), as amended, agreed! to.
Clause, as amended, agreed to.
Clause 29 -
After section eighty i of the principal Act, the’ following sections are inserted : - “ 80j. - (1) No person shall, unless lawfully entitled thereto (proof whereof shall lie upon him), make, offer for sale, sell, use, wear, barter, exchange, trade in, give away, or in any manner whatsoever dispose of or deal in any uniform of the Defence Force or any war badge, accoutrement, equipment or regimental or other distinctive mark, or any portion of or colourable imitation of such badge, uniform, accoutrement, equipment, or mark. “ (2) Any person’ on whose behalf or at whose place of business any article is sold, offered for sale, or otherwise dealt with in contravention of this section shall be guilty of an offence against this section.
Penalty for any offence against this section : Fifty pounds.” “80k- (1) Subject to sub-section (3) of this section any person who -
Sells, exchanges, pledges, deposits as security for the payment of money or otherwise disposes of … a certificate of discharge . . . shall be guilty of an offence.
Penalty: Fifty pounds.” ,
– This clause needs serious consideration because during the war period a number of colourable imitations of badges which were worn at that time were objected to. These badges had a certain sentimental value in the eyes of a great number of people who possessed them, and I cannot see how anything serious is likely to result if they are allowed to remain in use. Honorable senators will doubtless remember that there were thousands, or, perhaps, hundreds of thousands, of miniature badges representing the rising sun which was the distinctive badge of the Australian Imperial Force, and many of these were made into brooches and other forms of jewellery.
– It is not intended to cover those.
– It appears to me that they will be covered,
– The article mentioned by the honorable senator is not a colourable imitation.
– I think it is.
– If it is in the form of a brooch it is not a badge.
– At any rate, during the war period several jewellers were informed that they had no right to sell rising-sun brooches or distinctive badges bearing a regimental number.
– But that was repealed.
– I think this will be the means of re-enacting it.
– I have seen women wearing a small gold rifle as an article of jewellery. Would not that be allowed ?
– Not if it was the distinctive badge of some particular regiment. I believe the 13th Regiment has a small imitation of his Satanic majesty as its badge. These men became known as “ The Devil’s Own.” So any emblem of that nature would be a colourable imitation of a regimental badge. I want to be quite sure that no undue harshness will be inflicted upon innocent people by the operation of this clause.
.- That certainly is not the intention of the clause. The intention is to . prevent the misuse of these badges, possibly by their manufacture and sale. This clause is supplementary to the other. The meaning of the words “ colourable imitation “ is an imitation which whilst not being an exact replica of a badge or decoration, is intended to be regarded as such. In the early stages of the war drastic restrictions were certainly enforced by regulation against the wearing of such things “ as regimental brooches or colour patches of units, but those restrictions were subsequently relaxed later. The intention of the clause is to prohibit the manufacture of any such articles by unauthorized persons.
– Who would be authorized ?
– Those persons to whom the contracts were issued by the Government.
– Would licences be issued to tailors to make uniforms?
– No, but permission might be given to a tailor to sell a uniform to an officer or a private.
– There would not be a general permission?
– No.’ If honorable senators will only carry their minds back to what happened during the war they will understand the necessity for the insertion of this clause. It was the constant practice then for men who had deserted ‘ from our military camps in Australia to affix to their uniforms medals, decorations, and patches, and go about the streets begging, thus bringing the uniform into disrepute in every capital city of Australia. Scarcely a month passed without numbers of these men being arrested by the military police charged with impersonating soldiers, when as a matter of fact they were absolute humbugs . who were continually getting at the people. In some cases they wore civilian clothing with a patch to suggest that they were returned soldiers.
– No honorable senator wishes to prevent the Government from having the power to deal with such persons. The only object is to prevent harshness in the operation of this clause.
– That is not intended at all. A colourable imitation as I read the words, means an attempt to impose on and deceive the general public. If the words are not inserted it will be necessary, in the event of any prosecution being launched, to prove that the decoration or badge is not an imitation. It might be difficult to do this, with the result that the Court might hold that it was only an imitation of a badge or decoration, and so the offender would escape.
.- I am entirely in sympathy with the Minister (Senator Pearce) in connexion with this clause, and also his interpretation of the words “colourable imitation.” In trade and commerce a colourable imitation of an article infringing the Trade Marks Act is defined as such a thing as would deceive the unwary purchaser. I take it that a colourable imitation of an article of equipment or badge would be such a thing as would deceive the unwary observer, and so I am in accord with the Minister. But the clause also suggests possible complications in connexion with our rifle clubs. By virtue of regulations which have been issued to-day under the Defence Act, our rifle clubs become to some extent, if unofficially, part and parcel of the Defence scheme, inasmuch as they are being now recognised by the Defence Department.
– They have always been.
– Yes, but during the last twelve months there have been certain alterations in connexion with the subsidy paid by the clubs.
-Rifle clubs are under the civil, not the military, side of the Defence Department.
– Then I take it that this clause would not in any way interfere with rifle clubs.
.- I regard, the clause mere seriously than the Minister (Senator Pearce) does, and hold that whatever may be the intention, it will undoubtedly catch all sorts of unwary people. For instance, if one of our cadets, on whose uniform is the Rising Sun badge, in a moment of weakness gives the badge to his best girl, he may be charged with giving away a military badge and render himself liable to a fine of £50, while the girl, if she wears it, will likewise be liable to a similar fine.
– The honorable senator is quoting the extreme penalty for an extreme case.
– I am quoting just what the clause provides. Of course the magistrates, in their wisdom; may modify this savage penalty, but I put it to honorable senators that we should have to bear the brunt of any criticism if the public objects to this sort of thing.
– Do you suggest that every cadet should be allowed to give away his uniform or badge?
– No, I suggest that if he gives away his badge he should be made to pay for it. That has been1 the practice in the past, and it has been am ample safeguard, as I know from twenty years’ experience in the militia.
– I do not think the maximum penalty is too much, because the Government might have to deal with a firm that is deliberately infringing the law by selling these articles.
– It has never been done before.
– Is the honorable senator aware that during the war there were firms, both in Sydney and Melbourne, who, until prevented by regulation, were doing a roaring and lucrative trade in these things?
– But we are now back in a time of peace.
– What about returned soldiers’ badges?
SenatorELLIOTT.- There will be no very great sale for them now, and in any case there is provision, in another portion of the Act, for the punishment of any person pretending to be a returned soldier. This clause, I think, is panic legislation, for which there is no necessity, and under which prosecutions might be launched against people whom it was never, surely, intended to touch.
– The whole clause should be very carefully considered, because it is not what the Minister for Defence (Senator Pearce) says is the intention of the clause that we have to consider, but the intention as we read it. I have a vivid recollection of our attempts to stop the illicit trade mentioned by the Minister, but I may also point out that the regulation which was effective in that case also prevented our jewellers from doing a very profitable trade in the manufacture of articles for personal wear for which, at the time, there was a strong demand. The Minister will remember that deputation after deputation waited upon him in connexion with this matter. One firm in Melbourne manufactured an ornament not intended in any way to be used with the object of deceiving the general public, but under the regulation to which I referred they were prevented from selling it. Let us see what the clause means : -
No person shall, unless lawfully entitled thereto (proof whereof shall lie upon him) make, offer for sale, sell, use, wear, barter, exchange, trade in, give away, or in any manner whatsoever dispose of or deal in any uniform’ of the Defence Force, or any war badge, …
Our warehouses and retail shops are full of military clothing which is being offered for sale.
– Not for uniforms.
– What would be the position of a man who was arrested for wearing a military overcoat?
– Permission having been given to retain their overcoats, they would not be unlawfully using them.
– There is no permission given in the Act, and I should say that if a man charged with wearing a military uniform were brought before a magistrate not conversant with, military affairs, he would probably be asked to produce his permission. It would be a very difficult matter indeed for a man so charged to distinguish between those articles of clothing’ which he had purchased and for the wearing of which permission had been given, and the things which were not allowed. I think this clause will cause as much trouble as was caused by the regulation to which I have already referred.
– Subsequently, that part of the regulation was repealed.
– I agree with the statement of the Minister. In the earlier stages of the war we issued regulations which prevented not. merely undesirable, but most desirable traders from trading in certain things.
-brockman. - That seems to suggest faulty administration.
– This clause practically follows the wording of the regulation which was in existence at the close of the war, and which allowed brooches and other things to be worn.
– It more closely resembles the regulation which was operative during the earlier stages of the war. This is not a question of administration, because administration must be based either upon’ the wording of the Act or the regulations themselves. I am sorry that i cannot offer any suggestion by way of amendment. Sub-section 1 of proposed new section 80j refers to a “ colourable imitation” of such badge, uniform, accoutrement, equipment, or mark, and Senator Pratten’s definition of “colourable imitation “ is something which is calculated to delude the unwary. But anybody might be deluded by the emblems which a jeweller might sell. The Minister should make it perfectly clear what class of trade will be permitted under the proposed new section.
Senator elliott (Victoria) [4.52].- Whilst Senator Gardiner was speaking I recalled the circumstance that General Brand, at a conference with senior officers some, time ago, stated that he had issued instructions to the police in Victoria that prosecutions should be instituted against persons who offended against a regulation of this character. Later, he received a letter from the senior constable in one of our north-eastern districts who said, in effect, “ There are two men here who appear to have offended against the regulation.” He gave the name of one of the offenders, who was a well-known squatter. This man, he said, was wearing riding breeches of khaki cord. He added, “It is clear that under the terms of the regulation he is wearing a ‘ colourable imitation ‘ of a uniform.” The constable also pointed out that in the same district there was a discharged Australian Imperial Force artilleryman who wore puttee leggings and riding breeches when driving his stock to market. The upper portion of this man’s body was attired in ordinary civilian . clothes. In reply, General Brand informed the senior constable that although, strictly speaking, these men were infringing the regulation, he was not to take action against them.
– But the honorable senator should know that those uniforms were given to the men when they returned from active service.
– Quite so.
– Therefore, they, are their personal property, and they are entitled to wear them.
– They are entitled to wear them only on parade. They are not entitled to wear a part of their uniforms while, for instance, they are chas- ‘ ing cattle. It was to prevent that sort of thing that the instruction was issued. Fortunately, General Brand realized his mistake, and foresaw that a tremendous outcry would be raised if prosecutions were instituted against these men.
– Would the honorable senator allow members of the Citizen Force to wear their uniforms while they are engaged in their ordinary avocations ? The uniforms are not given to them foT that purpose.
– They are not; but, undoubtedly, we can guard against that sort of thing in a proper manner.
– The soldiers’ organizations were circularized upon two occasions to warn their members not to wear their old trousers afteT they had been discharged.
– Except for parades. But the Australian Imperial Force men are wearing out their old uniforms -rather than allow them to rot in cupboards. This clause will lay these men open to be prosecuted, and it will not be permissible for any person charged with the administration of the law to instruct the police not to harshly enforce it.
– Hundreds of thousands of discharged members of the Australian Imperial Force have been wearing their uniforms, and not one of them has been prosecuted, for so doing.
– But here is a provision which is going to authorize their prosecution.
– Unless we pass .this provision, what protection shall we have against men wearing their Citizen Force uniforms ?
– If the Minister will remit that question to me with ‘the usual fee, I shall be prepared to draft a clause which will be quite satisfactory.
– If the clause were as long as another proposal which was drafted by the honorable senator, he would need to draft a whole Bill.
– If necessary, I am prepared to draft an entire Bill. It is for doing necessary legislative work that we are paid £1,000’ a year.
Amendment (by Senator Foster) proposed -
That after sub-section 1 of proposed new section 80j, the following proviso be inserted: - “Provided that nothing in this sub-section shall apply to any such badge or mark worn as jewellery.”
– I will accept the amendment.
Amendment agreed to.
Before passing from this portion of the Bill, I desire to direct- attention to proposed new section 80k. This is intended to prevent trafficking in discharged certificates, and is a very necessary provision, especially when we remember the number of benefits and privileges which hinge upon the possession of such certificates. It is, therefore, .desirable that we should afford some protection to those who hold these certificates, and the proposed new section has been drafted with that object in view.
– I desire to bring under the notice of the Committee paragraph c of sub-section 2 of proposed new section 80k, which provides that any person who - falsely represents himself to be the person to whom a certificate relates or makes any false statement with reference to a certificate of dis- ( charge shall be guilty of an offence.
Penalty: One hundred pounds, or imprisonment for six months, or both.
I wish to show how, under any kind of administration, great hardship may be inflicted under such a provision. In this connexion, I desire to bring under the notice of the Minister (Senator Pearce) a case in which two brothers volunteered for service abroad. One of them made the supreme sacrifice. The other travelled by water from Newcastle to Melbourne, where hebecame seriously ill, though -I do not know what was the nature of his illness.. He afterwards applied for some concession, which was granted only to soldiers’ who had been abroad. He was of somewhat weak intellect, and had been persuaded that his trip from Newcastle to Melbourne was “over the water,” and that he was, therefore, entitled to apply either for a war gratuity or for some other concession. For his action this young man is being prosecuted at the present time. It is one of those hard cases’ which cannot be avoided where a law is strictly interpreted. That there was no chance of defrauding the Govern-‘ ment is quite clear, because this man’s records were in the possession of the Defence Department. If he had not been a man of weak intellect, he could not have been led to believe that he was entitled to apply for the gratuity, and I submit that the turning down of his application was sufficient punishment.
– If he simply applied, how could he lawfully be got at?
– He was lawfully got at, because under the law he was included amongst persons who attempted to defraud the Department. Perhaps I should not discuss the case, because I believe it is still under consideration, but I have mentioned it as one of those cases of extreme hardship which a harsh administration of the law may bring about.
Luckily, I happen to know the particular case to which Senator Gardiner refers, because a member of another place has already brought it under my notice. The fact is that the man referred to is being prosecuted for making a false declaration, the false declaration being that he went overseas, leading to the presumption that he went on active service overseas. In connexion with the payment of gratuities, there is a great difference between one who went on active service overseas, and one who was in the Australian Imperial Force only in Australia. There is a difference of 6d. per day for every day of service. This man made two false declarations, which were sworn to before a justice of the peace. That cannot be said to have been done on -the impulse of the moment. It was a considered act.
– The considered act of a weak intellect.
– I was going to say that the honorable “member of another place, who brought this case under my notice, represented,’ as Senator Gardiner has. done, that this man was of weak intellect. When he did so, I at once ordered ‘that the prosecution should be stayed until inquiries, could be made, . and if it is proved that he is of weak intellect, the prosecution will not go on. That the declarations made by this man we’re false is admitted by those who saw me, in connexion with it. If any one makes a false declaration, he should be prosecuted. If ho is of weak intellect, that is a matter for clemency on the port of those administering the. Act, but the power to prosecute in such a case should be provided for.
.- I am in favour of the proposed section 80k, and I suggest that it should be considered separately from the proposed section 80j.
– The” honorable senator may discuss both proposed sections, but the, Standing Orders, without equivocation, enjoin upon me the duty of putting each clause as a whole to the Committee.
– Perhaps I might give effect to what I desire by moving as an amendment that the. proposed section 80j should be left out.
– The honorable senator cannot do that, because an amendment has already been adopted in connexion with that proposed section.
– The proposed section -80j seems to me to perpetuate panic war legislation. If it is necessary that the clause shall be. gut to the Committee as a whole, though Iapprove of the proposed section 80k, I shall be reluctantly compelled to vote against the clause in-, cluding it.
Clauses, as amended, agreed to..
Clauses 30 and 31 agreed to. .
Clause 32 (Penalty for making use. of uniform).
– The. intention of’ this clause is to cover the case of officers in the retired list authorized to wear uniform, but who are no longer members’ of the Defence Force. It is necessary to provide for cases where portions of the uniform, such as military boots or hats, are worn.
Clause agreed to.
Clause 33 (Disposal of uniform or decoration illegally worn).
– Perhaps the Minister will explain what is the difference between this clause and the proposed new section 80j.
– This clause refers to the disposal of uniforms or decorations illegally worn; After conviction in such a case the question of the disposal of the decoration or uniform illegally worn must be dealt with.
Clause agreed to.
Clause 34 (Bringing contempt on uniform).
. -By this clause it is proposed to insert in section. 84 of the Principal Act, after the word “uniform,” the words “or portion of any uniform,” I suggest to the Minister for Defence that he might insert also the words “or flag.”
-Which flag would the honorable senator, have?
– The Australian flag. If the amendment I suggest were adopted this provision might be used to deal with persons who bring the flag into contempt. The occasion, I think, is apt. for such an amendment as I suggest. Section 84 of the Principal’ Act might, by this clause, be so amended that bringing the flag into contempt would become an offence.
Clause agreed to.
Clause 35 -
After section eighty-four of the Principal Act, the following sections are inserted : - “84a. Any person who with intent to hinder or prevent military operations damages, any. railway, tunnel, bridge, viaduct, culvert, road, or path, shall be guilty of an offence.
Penalty : Five hundred pounds’ or imprison-‘ meat forthree years.”
.- I should like some explanation of this-, clause.. It seems to me that the penalty provided for is quite inadequate.. A person who pullsup a railway line may endanger a great many lives; It seems to. me that he ought to -be charged with an. attempt to murder, and should . be liable to very heavy punishment. ‘
– Recourse to the civil law would still remain.
– The mancould not be charged with twooffences.
– He might be charged with: manslaughter under the civil law if any one was killed.
– The proposed new section 84a deals with a very serious offence, . and I think the penalty provided for it is quite inadequate.
– I think that ten years should be substituted for the three years proposed.
– If honorable senators will consider the proposed section they will see that it deals with an attempt to interfere with a railway, tunnel, bridge, or road in order to hinder or prevent military operations. That is different from the civil offence of interfering with a railway to bring about a collision or to capsize a train, by which a number of persons might be killed. If a person’ offending against the proposed section brought about loss of life he could be arrested under the civil law and tried for murder or manslaughter. If legal members. of the Committee consider that the penalty provided for is not sufficiently severe, I have no objection to increase it, but it seems to me that the proposed section does not take away the right under the civil law to deal with any person who by damaging a railway line brings about loss of life or damage to property. It might be convenient for the Committee if the Chairman would put the proposed new sections separately according to the marginal notes.
– I will permit their discussion separately, but I must put the clause as a whole.
.- This is such a serious matter that it may result in persons guilty of a very serious offence escaping with the comparatively light punishment of three years’ imprisonment. I suggest that the proposed section might be referred to the Attorney-General for an opinion as to whether, by making this an offence under the Defence Act, we would not be over-riding the civil law of the States.
.- I shall have the point raised by the honorable senator. looked into. Proposed new section84b, relating to untrue statements in applications for the payment of any money or allowance, has been found necessary during our war experience for the safeguarding of public moneys. We have had one or two unfortunate experiences where we’ found that we had not sufficient power. The law authorities have drafted this provision to give us the power required.
SenatorFOSTER (Tasmania) [5.21]. - Proposed new section 84c Refers to the supply of liquor to persons undergoing training in pursuance of Part XII. of the Act. Do compulsory trainees go at any time for artillery training to Queenscliff? If so., while they were on duty down there, would this proposed: new section prevent any member of the permanent forces stationed at Queenscliff from getting a drink in Queenscliff?
– Not necessarily.
– Would it be- all right so long as he had a permit from his commanding officer ?
– I should like the Minister to explain the intention of proposed new section 84d, which provides that certain persons may be required to’- remain outside the vicinity of camps of training. I presume that it is intended to prevent the presence of prostitutes, and is not meant arbitrarily to exclude the relatives of trainees.
– No, it is aimed at undesirable women.
Clause agreed to.
Clause 36 (Penalty for contravening the Act).
SenatorFOSTER (Tasmania) [5.23]. - Will not this clause require to be amended consequentially upon the throwing out of the British Army Act ?
– No, because the Army Act still applies to our Forces in war time. I have had a check made of the consequential amendments which are required, and am assured that it is necessary that this clause should remain in the Bill.
Clause agreed to.
– While the Standing Orders impose upon me no obligation to do so, I mention, as a matter of courtesy, that I- have received from Senator Elliott a printed notice of a new clause 36a, ‘which the honorablesenator proposes to move to -insert after clause 36’ of the Bill- I wish to state, for the information of Senator Elliott and other honorable senators, that the responsibility always rests upon honorable senators themselves to move their own amendments, notwithstanding that they have given notice of them.
– I am much obliged to you, Sir. I was under the impression that the fact that 1 had given notice of the amendment would ins ore it being called on at the proper time. In the new clause which I have circulated, my object 13 to incorporate in our Defence Act two of the most desirable sections of the British Army Act. Senator Foll drew attention to sections 42 and 43 of that Act. Section 42. provides -
If an officer thinks himself wronged by his commanding officer and, on due application made to hun, does not receive the redress to which he may consider -himself entitled, he may complain to the Army Council in order to obtain justice, who are hereby required to examine into such complaint, and, through a Secretary of State, make their report to His Majesty, in order to receive the directions of His Majesty thereon.
The footnote to that section is as follows : -
This section does not limit the right of the Sovereign to receive complaints, hut only controls the manner in which officers thinking themselves wronged are to approach the Sovereign.
Therefore the British Army Act, which has been described here as a perfect code, endeavours in this regard to provide ample means whereby an officer may appeal to the Sovereign to redress his wrongs. Section 43 of the British Army Act provides -
If any soldier thinks himself wronged in any matter “by any officer other than his captain, or by any soldier, he moy complain thereof to his captain, and if be 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 oof 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 cause such complaint to he inquired into, and sholl, 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.
Under the Army Act, therefore, very fair and ample provision is made for the redress of grievances. In the case of a soldier there appears to he a .sort of complaints officer, to whom he may resort for the redress of his grievances. When it was sought to import the provisions of the Army Act’ into our Act, the. Minister (Senator Pearce) admitted that these sections would not be applicable to our soldiers, inasmuch as there were more or less similar provisions made under regulations for the redress of our soldiers’ grievances; but, as I have pointed out on numerous occasions, that is by no means satisfactory to the officers and soldiers who have to serve under them, inasmuch as the regulations can be varied at the sweet will of the Military Board and the Minister.
– But if the Army Act is operative in time of war, are not the whole of the provisions of the Army Act, including these provisions, operative?
– I believe that actually that is the legal position, and I am at present obtaining counsel’s opinion to establish that fact. I believe that our regulations, where they purport to provide a different procedure, are ultra vires; hut the Minister has insisted, in his replies to various questions that I have addressed to him, that it is our regulations that apply, and that the Army . Act has nothing- whatever to do with the Australian Imperial Force or any other Australian Force which is serving abroad. I’ think he is unsound in that contention, and that, consequently, the acts of his officers who refused to recognise the authority of the Army Council in regard to out officers were absolutely wrong and illegal, and that the Minister and all his. officers are liable to actions for heavy damages. That point may be established later; but the .position taken up at present -by the Minister in regard to all these applications for the redress of wrongs is, first, that the Army Council does not apply, and, second, that the remedy, if any, lies with the Governor-General here. Yet we have the case of that unfortunate officer, Captain McLennon, who, in defiance, more or less, of . General Birdwood, sent the papers, home to his father and got him to approach Senator Pearce, and afterwards received a letter from Senator Pearce saying, “ You cannot have an appeal, because General Birdwood is the sole authority to deal with the matter.” So that the unfortunate soldiers were caught both ways.
SenatorPratten. - The Minister actually superseded the Army Act himself?
– Yes, so far as I can gather; but I have failed to draw that admission out of him. He has denied in so many words that he interfered with the Army Act, but, in’ effect, that is what happened. The combined authority of the Minister and General Birdwood prevented an officer or man from having any appeal, and that is still being persisted in here.
– In spite of the Army Act?
– Yes. I shall,.therefore, propose these amendments which embody all the principles in sections 42 and 48 of the Army Act, in order to provide some authority which the Minister and his permanent officers shall be obliged to respect by an. appeal to the civil law. The provisions of the new clause, as I see them, are merely a codification of what is the common law of the realm. I think if officers and soldiers had money enough to fight the Commonwealth, the principles which I have endeavoured to embody in these amendments would be found to be the principles of common law, but it. is a very serious matter for officers or soldiers, who have not much money to spend, to have to fight, perhaps right up to the Privy Council, to establish those principles. It is,’ therefore, for the guidance of ‘the Minister and his officers, as much as for the assistance of the soldiers, that I am endeavouring to have the law codified and laid down in this. way.
– “While the honorable senator is dealing with that matter, I suppose he has before him the amendment circulated by the Minister?
– Yes. The objection to the Minister’s amendment is that it is not to apply, in time of war, and that the soldier, whatever redress he. mayhave in time of peace, is to have none in time of war.
– Oh, yes, he will. The Defence Act does apply in time of war.
– The Minister states specifically, in the amendment he has circulated that it shall not apply in time of war. For instance, paragraph d of proposed new sub-section 5 of the proposed’ new section 123h provides -
If he’ thinks that he has been wronged by the general or other superior officer specified in the last preceding paragraph, either in respect of his complaint notbei ng redressed, or in respect of any other matter, he may, except in time of war, complain to the Military Board-
That is no good at all.
– Your amendment applies in time of. war, and the Minister’s in time of peace?
– That seems to be the case.
– That is not correct. Read’ the whole clause, and you will see that it is not correct.
– I will finish reading that clause -
He may, except in time of war, complain to the Military Board, or, if the Military Board is not at the time constituted, to the general officer commanding the Australian Military Forces in which the soldier is serving.
– General Birdwood, for instance?
– Yes. It is further provided’ in . proposed new subsection 6 -
Any complaint made in pursuance of the last preceding sub-section shall be made through the proper channel.
– The phrase “ except in time of war “. does not govern the whole clause, as the honorable senator, as a lawyer, knows. It only governs that particular sub-section.
– Surely it covers the whole of the proposed new subsection 5?
– No. It governs paragraph d.
– I do not see it.
– It seems to me that your interpretation is right, looking at it from a layman’s point of -view.
– I am afraid it is right from a legal point of view also.
Under the -Minister’s proposals, so far as I oan gather, if the general officer commanding likes to refuse to redress the soldier’s wrong, that is the end of it in time of war. There is no such limitation in the Army Act; in fact, no general in the British Army would dare to interfere with an officer’s right of appeal to the Army Council in time of war or in time of peace. It will be seen that under the Army Act a special complaints officer is told off to investigate soldiers’ complaints. I remind the Committee that if officers and men find that there is no method provided for them to bring forward their complaints and have them adjusted, it constitutes the most dangerous incitement to mutiny. If they find that the only way to get redress is to attract public attention by banding together and raising a mutiny, they will undoubtedly take that course, and it is our duty, when dealing with the handling or administration of the affairs of large bodies of armed men, to provide a means by which grievances can be investigated, duly ventilated, and ‘redressed. It is with that object in view that I shall move these amendments.
– Do you say the soldier under the Army Act has the right to go up to the King?
– No, the officer has, but the soldier has not, and, being a democratic man, I do not” see why the soldier should not in a proper case have an appeal to Parliament.
– A little while ago you said he had an appeal right to the King.
– I did not say so. I read the section of the Army Act, of which the language is very clear, and explained it by comments where I could.
– When criticising part of my amendment, you said that under the Army Act they had the power, but that under my amendment they had not. They have not got. the power under section 43 of the Army Act.
– “With the distinction that the Minister points out between soldiers and officers, perhaps that is so. Inasmuch as we are prepared to give officers the right it would be wise to provide our soldiers with a means of having their grievances properly inquired into. In a letter to the press a few days ago I cited a case which should be fully investigated. A -man who was introduced to me by the honorable member for Hindmarsh (Mr. Makin) informed me that during his service as a warrant officer - he had an unimpeachable record - at Alexandria, in charge of the mess,, it was a part of his duty to secure provisions from a Greek firm of contractors. This warrant officer informed his commanding officer that the food was unsatisfactory, and requested that the contract .be cancelled. The Greek firm thereupon charged the man with attempted blackmail, and said he was endeavouring to obtain from them money by way of a secret commission, and that when they refused to be blackmailed, he sought to have the contract cancelled. A preliminary investigation was held by an officer allotted for that purpose. That officer is now in Melbourne, and although I have not seen him, I have been assured that he is prepared to give evidence to the effect that there was absolutely no evidence against the warrant officer. Notwithstanding that there was no further trial this man was returned to Australia as an undesirable.
– By whom?
– By the authorities in Egypt.
– There must be some one who was responsible for his return to Australia. Waa .ho tried by court martial ?
– Apparently the officer acted on the recommendation of the commanding officer, and I suggest that honorable senators who have had experience in Egypt and who know of some of the things that went on there should fully consider the position. I do not know who the commanding officer was - some may say he was a great and honorable man- - but I suggest that it is at least possible for the commanding officer to have been receiving a secret commission from the Greek firm supplying goods.
– That is as good a suggestion as the other.
– Quite. The services of the warrant officer were dispensed with. I am not in a position to conduct an inquiry; but what I have mentioned has been given to me as correct. When the warrant officer returned to Australia he- was given a bad discharge, and on endeavouring to resume his employment at a Government factory from which he enlisted was told that he could not be re-employed as his discharge was unsatisfactory, and that he would have to look elsewhere for employment.
– I must draw the honorable senator’s attention to the fact that his period of fifteen minutes has expired.
– I suggest to Senator Elliott that the Minister in charge of a Bill should’ have some consideration extended to him. The point that Senator Elliott has raised was debated in Committee, and a suggestion made by Senator Drake-Brockman - which was, I think, generally supported by the Committee, and to which I promised to give consideration - was that in certain cases the appeal which officers had was illusory, because it was really appealing from Cæsar to Cæsar or from the Military Board to the Military Board. It was also suggested that, as the question of appeals and the redress of wrongs appeared to the Committee to be very important, instead of leaving them to regulations it might be desirable for the Government to consider the propriety of embodying a provision in the Defence Act. I promised to consider that, and I have framed certain amendments intended to meet these views. The object is to provide for the redress of any wrongs by embodying a provision in the Act instead of leaving it to regulations, and to give effectto the appeals of higher officers so that they will not have to appeal from Cassar to Caesar. Prior to the circulation of these amendments, Senator Elliott had distributed other amendments, and I point out to him that we shall be producing rather a peculiar Bill if we have two draftsmen trying to arrive at the same idea bv different means. I think that Senator Elliott’s proposed new clause will not be in its proper place in the Defence Act if it is inserted here.
– I have no objection to postponing the consideration of the proposed new clause until a later period.
– I was going to suggest the postponement of the proposed new clause until we are dealing with clause 58, which is the right place, the Draftsman informs me, for an amendment of that character to be inserted.
Unless that is done we shall have a discussion on Senator Elliott’s amendment at this stage, although the purport of it is the same as mine. As I am’ the Minister responsible for the Bill I think Senator Elliott will admit that I should have some consideration extended to me in connexion with its drafting. The honorable senator will have time before we reach that clause to consider the matter, and then to move an amendment if he thinks that my new clause does not meet with his wishes. We shall then have one discussion, and whatever is adopted will be inserted in the right place in the Defence Act. The honorable senator will not be giving away any rights which he wishes to conserve.
– I am inexperienced in parliamentary procedure, and am quite prepared to accept the Minister’s suggestion so long as I shall not be prejudicing my position in any way.
– I might explain, at this juncture, that the Draftsman and the Secretary to the Minister is available to any honorable senator, . and I would suggest that Senator Elliott consult the Secretary to the Minister who is in touch with the Draftsman, and ask him to draft such amendments to my proposed new clause as will give effect to his wishes.
– Then I shall withdraw my proposed new clause.
– The honorable senator cannot withdraw his proposed new clause, as he has not formally moved it; but it is open for him to take such action as he desires at a subsequent stage.
Clause 37 (Powers may be delegated).
– There seems to be a little conflict of opinion between the Minister for Defence (Senator Pearce) and Senator Elliott.
– What clause is the honorable senator discussing?
– The proposed new clause moved by Senator Elliott.
- Senator Elliott, of his -own volition, has decided to take whatever action he considers necessary at a later stage. We are now discussing clause 37.
– Do I understand that the proposed new clause has been withdrawn ?
– The honorable senator was only discussing it ; he had not moved that it be inserted.
– Then if that is the position, I shall reserve my remarks until a later stage.
Clause agreed to.
Clause 38. (Laws applicable to courts martial.)
– I do not like to pass a clause dealing with courts martial, without knowing exactly what I am doing. It seems that the amendment is merely consequential, and does not deal with any principle in connexion with courts martial, because it merely provides- for the insertion of the words “and the powers exercisable in relation to those findings and sentences.”
– It is merely a drafting amendment.
Clause agreed to.
Clause 39 agreed to.
Clause 40 (Punishment for contempt of court) .
.- I shall be glad if the Minister for Defence will give the Committee some information on this clause.
– We have removed the punishment for contempt from court martial, and this is machinery to provide for bringing it before a civil Court.
Clause agreed to.
Clauses 41 and 42 agreed to.
Clause43 - (Powers of courts martial as to sentencing).
– Will the Minister for Defence explain what is meant by the insertion of the words “ to or in substitution for that punishment “ ?
– It merely gives the court power to inflict alternative forms of punishment. The punishment of a member of the Permanent Forces might be a monetary one, or discharge from the Forces, but we would not discharge from the Forces a person who was subject to compulsory military training. It is merely to allow freedom in view of the fact that we are dealing in one case with members of the Permanent Forces, to whom discharge in itself might be a punishment; but in the other case we do not want to give the court power to discharge from the Forces a person who is serving compulsorily.
Clause agreed to.
Clause 44 -
Section ninety-eight of the principal Act is amended -
by inserting therein, after the words “except for”, the word “murder”; and
by inserting therein, after the word “court martial” (second occurring), . the words “ within the limits of the Commonweal th , “.
Section proposed to be amended -
No member of the Defence Force shall be sentenced to death by any court martial except for mutiny, desertion to the enemy, or traitorously delivering up to the enemy any garrison, fortress, post, guard, or ship, vessel, or boat, or traitorous correspondence with the enemy; and no sentence of death passed by any court martial shall be carried into effect until confirmed by the Governor-General.
– The present Act prevents a court martial from passing a sentence of death, for an offence of murder. The’ only sentence which, under the Army Act, a court martial can pass for an offence of murder is that of death, and, “therefore, during the present war, where the offence of murder was committed, the courts were faced with the fact that they could not legally inflict ‘a sentence for a conviction of murder. In one case a man was found guilty of murder, but the court could not inflict a sentence, and it was not until eighteen months afterwards that a trial was completed, when the man was brought to Australia for the purpose. Even then he could only be charged with attempting to do grievous bodily harm. He was convicted by court martial - the civil Courts had no jurisdiction - and was sentenced, to four years’ imprisonment. Nevertheless, the case was obviously one of murder. Towards the end of the war a regulation was passed modifying the . provisions of the Army Act relating to the sentences, so that penal servitude was inflicted; but this was a temporary - measure pending resubmission to Parliament of the question of penalty. The penalty for such an offence is very much more appropriately dealt with by Act of Parliament than by regulation. The retention of the provision for confirmation by the Governor-General of sentences of death imposed outside the Commonwealth,” ‘ in my judgment, would not be in the best interests of the prisoner himself. I ask honorable senators to consider the state of mind of a prisoner who in the last war may have been convicted of murder,’ and sentenced to death. He would have to wait whilst all the papers and reports connected with his case were sent to Australia for consideration by the Government, who would then advise the Governor-General, and the GovernorGeneral would come to a decision. I venture to say that such a strain imposed upon a man would be worse than death itself. As to the advisability of having the death penalty imposed for murder there can be no question. In every State of the Commonwealth, Parliaments, which are free institutions and responsive to public opinion, have not yet, so far as I know, nullified the death sentence for wilful murder. Therefore, we must assume that public opinion in the Commonwealth declares that the punishment for murder shall be death.
Let us consider the position of citizens of the Commonwealth in the late war. Men came forward voluntarily, and offered their services, and they were sent to fight on the other side of the world. Unfortunately, men do not change their natures. In every community a proportion of the population will, in certain circumstances, commit murder. There was a small percentage of that class in the Australian Imperial Force, and so murder was sometimes committed under revolting circumstances, in one case a man murdering his mate. There is little doubt that public opinion favours the punishment of murder with death. Therefore, I do not anticipate that the Committee will object to the death penalty for murder when our troops are serving outside Australia, and when the persons charged are tried by courts martial. If the murder is committed within the Commonwealth the prisoner will be tried by the civil Court, and not by a court martial, even if the murder be committed in a military camp. The only question, therefore, that I anticipate will be raised will be whether confirmation of a death sentence for murder shall be held over for the , GovernorGeneral in Australia, or whether it shall be left to some military reviewing authority, which will not be the authority that actually imposes the sentence.
Army sentences imposed by courts martial come up for review by the general officer commanding. “We may assume that, as in the case of the Governor-General, who would act on the advice of his Ministers, after a full review of all the documents, the general officer commanding, in reviewing a death sentence for murder, would have access to all the papers, and would make himself fully conversant with every aspect of the case. Moreover, he would have this advantage over the GovernorGeneral : Not only would he have access to all the papers, but he would also be able to bring, before him those persons who actually took part in the trial, who heard the witnesses give their evidence, who noted their demeanour and the demeanour of the prisoner, and would be able to give him the impressions which they had formed. The Governor-General would be in a different position. He would act on the recommendation of the Government, and would simply have access to the whole of the printed evidence taken at the trial, without being able to consult the persons who acted .as the prisoner’s friend or the prosecutor. He would simply have the cold records of the trial before him, and upon these he would be called upon to make a decision. It seems to me that the cause of justice would best be served by intrusting the general officer commanding with this important responsibility of confirming or commuting a death sentence. . If, however, there is a general desire on the part of honorable senators that confirmation should be reserved for the Governor-General, I will not press my view to the exclusion of other views, because this is a very important and vital matter. There is, of course, the question as to the competency of a military or a civil authority to determine this issue. But, after all, this is largely a question of terms, because, although the GovernorGeneral may npt be in a military command, he is nominally CommanderinChief of our Forces.
– But he would only act on the advice of his Ministers.
– Yes. And that seems to be a good reason why we should retain the right of confirmation by the Governor-General. It brings in the authority of the civil power. The GovernorGeneral acts on the advice of his Ministers. But are they competent to advise in a matter like this? When this question came before me, I had no difficulty in making up my mind about the retention of the death penalty for murder,. but I confess I bad some doubt as to whether the confirmation should be by the Governor-General. It seems to me, however, that the balance of the argument is in favour of allowing the commanding officer to exercise this important responsiblity.
– I agree with the opinion expressed by the Minister for Defence (Senator Pearce) as to including murder as one of the crimes punishable by death, but I differ from him as to the necessity for including the words “ within the limits of the Commonwealth “ in the clause now before the Committee. I can see no reason whatever for this limitation of our civil rights, because a member of our Citizen Forces remains a citizen of the Commonwealth, whether he be within the limits of the Commonwealth or in some other part of the world.
– If he is on Commonwealth service.
– Yes. And as a citizen of the Commonwealth he is entitled to all his rights and privileges. It is proposed in the clause now under consideration to provide that if a member of the Military Forces of the Commonwealth be sentenced to death for any crime within the Commonwealth, his case shall be reviewed by the highest authority in the land, namely, the representative of the King himself. As the Minister has already pointed out, confirmation of a sentence by the Governor-General means confirmation by the Executive Council, which is composed almost entirely of persons elected by the people themselves; and so the citizenship rights of an accused person in regard to his sentence will be reviewed by an authority which he himself has helped to create. But if we are going to give to a military authority in some other country, perhaps adjacent to> Australia, the right not only to condemn a man to death, but also to carry out the penalty without reference to the civil authorities of this country, that would be going considerably further than I am prepared to. follow the Government. The Minister for Defence has suggested that it would be an awful ordeal for a man, under sentence of death in the field, to wait until his sentence had been confirmed by the Executive. Council in Australia, but we need not concern ourselves very much with the state of mind of a man guilty of murder pending the execution of the sentence. Even if he were sentenced to death in Australia, some time would elapse before the sentence was carried out. We need not concern ourselves so much with a man who has been proved ‘guilty, as with the position of a man who may be innocent. In his case the extra time allowed by the requiring of confirmation of the sentence by the Governor-General might make all the difference in the world as to whether the facts of the case shall be disclosed or not. Many a man has been sentenced to death, and the sentence carried out, on circumstantial evidence. Something of the kind may occur in connexion with sentences imposed by courts martial.
– That mostly happens in novels.
-No, it does not. There is an old saying that the “ law is a hass,” and very often, even in this enlightened community, the truth of that saying has been demonstrated . I am not saying anything at all against the fairness of a court’ martial. I know it is absolutely fair. But courts martial will sit in a time of great urgency, and when the officers composing it have countless other duties to perform. In such cases it is likely that a trial would be hurried through. The Minister has said that these sentences would go for review before the commanding officer. The commanding officer is not so much concerned with the life of one individual who has been sentenced to death by court martial as he is with many major issues which, at such a time, are engaging his attention. To come to him’ and to ask his approval of the execution of the death sentence is, in such circumstances, veTy much like asking him to affix a rubber stamp to a document. He will certainly accept the advice of the officers who constituted the court martial.
– No; the honorable senator is wrong there. The case goes first to the general officer, who may be a major-general or a lieutenant-general. He goes thoroughly into it before it is passed on to the commanding officer of the Forces. The general officer is the judgeadvocategeneral.
– All the probabilities are against the general officer commanding giving any long consideration to the case. But if the, statement of my honorable friend be correct, it removes another argument which has been advanced by the Minister, who has pointed out that it is impossible for the GovernorGeneral or the Executive Council to see the witnesses who were examined in any case, to notice the demeanour of the prisoner, or to know anything but the bare’ facts as they have been recorded in evidence. But the decision of the court martial, it seems, must be further reinforced by the decision of the judgeadvocategeneral. I submit that, after the case has gone through the court martial which has delivered sentence, and after that sentence has been confirmed by the general officer commanding, there is nothing’ whatever to be lost, and a great deal to be gained, by deferring the carrying out of the sentence for a couple of months, in order that the Executive Council may be enabled to carefully safeguard the rights, privileges, and lives of our citizens. For that reason, I intend to move -
That the words “and (b) by inserting therein after the words ‘court martial’ (second occurring) the words ‘ within the limits of the Commonwealth ‘ “ be left out.
.- I wish to test the feeling of the Committee upon the question of the death penalty, quite apart from the point which has been raised by Senator Duncan. Although the Minister may wish to brush the matter aside by saying that the imposition of the death sentence is beyond discussion, I hold that the enlightened opinion of this country is opposed to capital punishment.
– Then the honorable senator will require to move the insertion of a new paragraph before paragraph a, because the words in the principal Act are contained in the beginning of the clause.
– I wish to strike out the words “ shall be sentenced to death.”
– Then the honorable senator will need to move for the insertion of a new paragraph, which will precede the proposal of Senator Duncan.
– I desire briefly to discuss this aspect of the question, and to move that no member of our Defence Forces shall be sentenced to death. I join issue with the Minister in his statement that the death sentence is generally accepted by the community. If it were possible to take -a poll of the people upon this question, I am convinced that it would be held that the capital penalty, not merely in cases of murder, which are particularly repugnant to everybody, but in every other case, should be abolished. Human life is so sacred that it is questionable whether we can improve matters by giving effect to the old savage Mosaic law, “ An eye for an eye, and a tooth for a tooth.” My own conviction is that there is a very widelyspread feeling against the death penalty even though it be the law of the land at the present time.
– I believe that a popular vote would abolish.it.
– Would not the honorable senator shoot a man if he deserted to the enemy?
– It is quite “ easy to point to most atrocious crimes, the effects of which are most serious. But I am discussing the question of the right to. take life.
– The honorable senator is questioning our right to engage in war.
– I have no time for’ murder whether it be State murder or otherwise.
– A charge of murder should be dealt with by an entirely different provision in the Bill.
– Amongst civilized communities there is a growing opinion - I do not suggest that it has grown very much amongst the military caste - that we have no right to take life, because human life is sacred.
– Logically speaking, the honorable senator ought to be opposed to the entire Bill.
– I have never learned logic. I usually act upon impulse.
– Experience shows that if the death penalty were abolished, murder would increase.
– That is quite a debatable question, because only a few years ago the same argument was used in regard to the abolition of the death sentence for stealing a sheep. We were then told that unless this crime were severely punished nobody’s sheep would be safe. As a matter of fact, I could point to a place in Sydney where only a few years ago three men were hung for thieving. I disagree entirely with the doctrine of capital punishment. Nine times out of ten a murderer is not in his right mind.
– H quite agree with the honorable senator.
– Then is Senator Duncan going to incur the risk nine times out of ten of sending to death a man who is not in his proper state of mind? Military methods, I recognise, are rough and ready. I do not know much about courts martial, but I understand that a court martial is always constituted of officers.
– That is so.
– In a community whose liberty dates back to Magna Charta, which provides that accused men shall be tried by their
– The Australian Imperial Force was essentially a democratic institution.
– I believe that it was. But the fact remains that its officers belonged to a class apart from its rank and file.
– The officers were drawn from the men by a natural process.
– But the very fact that they were drawn in that way, just as I have been drawn from the toilers to this Chamber, makes them superior beings
– The honorable senator is here because he is a superior being.
– Not at all. There are thousands of men in our organizations outside who could do better work than I do, if they were only given the chance.
– The honorable senator must not wander too far from the clause.
– I hope, sir, that you will not interrupt me. You may refuse mo the right to speak, but you cannot prevent me from speaking while I am here.
-AH I tell the honorable senator is that he must discuss a matter which is relevant to the clause.
– When it is remembered that I have only fifteen minutes to speak upon this question, what does it matter if in one sentence I go half a yard over the mark? . I do hope that the Chairman will realize that I am” not attempting to be offensive to him. But I have made it a practice to resist any attempt to interfere with my liberties here. I will not tolerate interference with them without protest. I claim my right to speak in the way that I think best on behalf of the people whom I represent.
– My ruling is based upon my interpretation of our Standing Orders, and must be obeyed.
– Your ruling may go to the extreme, and you may have me ejected from the Chamber, but you cannot prevent me from speaking while I am here. I shall assert my right to do so whenever I am challenged.
– I would remind the honorable senator that clause 44 is under discussion.
– I was arguing that military officers who form a court martial are not the peers of the person whom ‘ they try. They constitute a superior class.
– Rubbish !
– The ancient law of Britain gives to its people the right of trial by their peers. Accused persons do not get that under trial by court martial.. Coming back to the question of the punishment of murder by hanging or shooting, I can recall a case which occurred during the South African War. I recollect that a poet named Morant was shot during that campaign.
– I propose to refer to the Morant case.
– Then I need not refer to it. But his case and Hancock’s case left an unfortunate impression in my mind that if they had been allowed to come back here, and their cases had been finally dealt with in this calmer atmosphere, a couple of Australian officers would not have been sacrificed. There should, in my opinion, be an appeal from ai court martial to the Executive Council. _ If at Port Darwin a person under the civil law were sentenced to death it would be the Executive
Council sitting here that would finally confirm the death sentence. There would be no hurry, and there is no occasion for hurry. I can recall a case in Sydney in which a man was almost on the eve of being executed when petitions were sent to the Executive Council with additional facts showing that the evidence on which the man was about to be executed was absolutely unreliable, and at the last moment he was snatched from the gallows.
We have to consider, that the atmosphere of the military in active service is altogether different from the atmosphere of civil life. The code of the military on’ active service is altogether different from the code in civil life. In the military atmosphere men have to do what is necessary to be done, even though it involves the destruction of life and property. I do not wish it to be thought that I desire to draw any distinction between the morality of the soldier and that of the civilian. I have a great deal of sympathy for men who, under the conditions of active service and the mental strain of war, do things which, under other conditions, they would not dream of doing. I venture to say that there have been occasions, I will not say during the last war, when on active service soldiers suf-. fering from reprisals by the enemy have taken the law into their own hands and committed murder. One can scarcely call it murder, because in their roughandready way they have constituted themselves a court of justice, and have dealt it out to the people who offended against them. Those men could be sentenced to death by a martinet like General Elliott, not as a senator but as an officer responsible for the discipline of his command. He would allow no one to interfere with the discipline of his command. A man, or a body of men in the heat of excitement or suffering from injuries which they would regard as justifying the extreme course of taking the law into their own hands and taking life, might do so. They could be brought before a court martial for disobedience of regulations which forbade them to carry arms under certain conditions or to go outside their lines. They might have gone to a neighbouring village and destroyed it, and might have taken life because a comrade had been murdered there the night before or for some such reason. Before, a court martial it is possible that those men would be confronted with a very serious charge, which would reflect discredit upon the officers in charge of them if it became public. Their officers would try the charge, and would be judges to a certain extent of their own case since it would be important to them that they should vindicate their reputation by a sentence of death on the offenders. I could not defend the offenders, but I suggest that the atmosphere of their trial is a military atmosphere, and their jury officers with a sense of the dignity of their position and the proper dscipline of the Forces in their command. They would be dealing with such men with biased minds. I do not say that officers are not very often placed in very trying positions by men who take the law into their own hands. I do not go about with my eyes closed or my ears shut. I do not in this chamber or anywhere else voice the horrors of war as I have frequently heard them repeated.
– I draw the honorable senator’s attention to the fact that his time has expired.
Sitting suspended from 6.28 to 8. 7 p.m.
– During the suspension of the sitting an amendment has been prepared for me dealing with the question of the death penalty. Senator Pearce has pointed out to me that the amendment does not actually provide for all I want. It merely wipes out the death penalty for murder. I am reasonably accurate in estimating the opinions of honorable senators, and so I propose’ to move the amendment in the form in which it has been given to me. Then if I have sufficient support to carry it I shall ask for the postponement of the clause until the amendment is put in proper order. I move -
That all the words after the word “ amended “ be left out with a view to inserting in lieu thereof the following words: - “by omitting all the words after the word court-martial’ first occurring.”
– I had a doubt as to whether the amendment really effected what Senator Gardiner aimed at, but the draftsman assures me that it does. As the honorable senator points out, we can take the vote on the amendment, and if the wording does not carry out what the Committee desire we can afterwards recommit the clause. What Senator Gardiner intends is to strike .out the death penalty altogether, that is, that it would not be competent for any court martial to sentence a person to death for any of the offences now provided for in the Defence Act. In order that the Committee may know what they are doing, I shall read section 98, which we are now proposing to amend -
No member of the Defence Force shall be sentenced to death by any court martial except for mutiny, desertion to the enemy, or traitorously delivering up to the enemy any garrison, fortress, post, guard, or ship, vessel, or boat, or traitorous correspondence with the enemy, and no sentence of death passed by any court martial shall be carried into effect until confirmed by the Governor-General.
If Senator Gardiner’s amendment were carried it would have the effect of striking out the death penalty for any of the offences I have indicated. The Committee has inferentially indicated generally that it is prepared to agree to the death penalty for murder, although there is a division of opinion in the Committee as to whether the confirmation of the sentence should be reserved ‘for the Governor-General. The issue before the Committee is clear so far -.as Senator Gardiner’s amendment is concerned. It is whether or not the death penalty can be imposed by a court martial for any crime whatever. On that I ask the Committee not to support the amendment, because if murder is to be punished by the civil law with the sentence of death, we ought not to have any less sentence for the citizen who becomes a soldier. We should certainly be inconsistent if a soldier committed murder and received a less punishment than a civilian who committed the same offence. Some. of the other classes of offence are even more serious, because by traitorously giving up a post to the enemy a soldier may kill thousands, and may indeed kill the nation, because he may by that act lose the war. Therefore, as the greater contains the less. I content myself with putting the issue to the Committee on the offence of murder only.
.- A vote on this amendment will not indicate how I desire to vote on the clause. I am quite in accord with giving a court martial full power to deal with a man while Australia is at war, because I recognise that a .law pertaining to a state of war must be absolutely different from a law applying to a state of peace. There are two of these offences which might be committed while the nation is at peace - mutiny and murder. I am opposed to giving a court martial power to inflict capital punishment in - any such case which might be tried before a civil Court.
– In Australia, it would be tried by a civil Court.
– It might not be. If, however, the object of the amendment is to remove from the government of the Army the power of execution for some of those heinous offences which might sacrifice the lives of. thousands of men, then I cannot agree to it. Much as I am opposed to capital punishment, and much as I wish to see it abolished as far as possible in our civil life, I am not going to give to a man who is prepared to sell, not only his comrades, but his country, immunity from the punishment which he richly deserves. I should like to see the words “unless Australia is in a state of war” inserted.
– It will not apply at other times.
– If the honorable senator can convince me of that, I shall vote for the clause as it stands.
– The Defence Act as it stands provides that all these cases* shall be tried by a civil Court if they are civil offences.
– Then I shall vote against an amendment which has for its object the abolition- of the power to award the death sentence to a man who has no right to live if he is convicted of committing such a crime as I have indicated.
– It would save debate if I indicated here that no Australian court martial could sentence anybody to death, even for these crimes^ but . the position is that the * Defence Act in time of war applies the Army Act, in so far as it is not inconsistent with the Defence Act, but the Australian Parliament, in framing the Defence Act, interfered with the Army Act to this extent, that it gave a court martial only the power to sentence to death for the crimes set out in section 98. The Army Act gives power to impose a sentence of death for desertion, -but as that is inconsistent with the Defence Act, , a court martial cannot award the death punishment. As we have not in our Defence Act given a court martial power to award the death sentence for murder, or for any of the other offences mentioned, such cases have to he tried by the civil law. Senator Gardiner will need to amend his amendment in one direction, otherwise he will prevent those who desire to give the right of confirmation to the Governor-General from doing so, because he is omitting all the words in the clause after “ amended.” If that were negatived, the Committee would then have affirmed the retention of sub-clause b, which does away with the confirmation of the GovernorGeneral when the sentence is made overseas. The honorable senator will have the opportunity of testing the feeling of the Committee by- moving to insert the words after “ amended.” If the amendment is put in its present form it would not be a fair vote, because some honorable senators desire to delete subclause b, and the honorable senator wants to Tetain sub-clause a. To make the position quite clear, I think Senator Gardiner should move to insert after the word “ amended “ the words “ by omitting all the words after ‘ court martial ‘ first occurring.”
– I am quite prepared to adopt the Minister’s suggestion.
– The amendment will now read -
That after the word “ amended “ the following words be inserted : - “ by omitting all the words after the words court martial (first occurring) . “
– I have a suggestion to put to the Committee’ which I think will cover most of the ground, and which may allow Senator Gardiner to withdraw his amendment in favour of the one I am now suggesting. My first proposal is to strike out the word “ murder “, and the words, “ within the limits of the Commonwealth”, thus restoring section 98 to its original form.
– That would be just as unfair to honorable senators as was Senator Gardiner’s first proposition.
– I do not think so. I also propose moving for the insertion of a new proviso, to read-
Provided that where any person on active service commits an offence which by the laws of the State in which he enlisted would be murder, he may be tried by court martial and the sentence of such offence may be similar to that provided by the laws of that State, and the accused shall have the same right of appeal to a Court of criminal appeal as he has under the laws of a State.
Certain States have provided a Court of criminal appeal for their citizens in murder charges, and I think it desirable that all States should have such a provision.
– Would not that be ponderous during a state of war?
– No; because when a man commits murder his services are lost to the Forces. At the present time when a man is charged with a capital offence he is arrested, tried, and convicted and sent back to Australia under escort.
– If a man were convicted of murder by a court martial and the sentence could not be carried out on a battlefield, he would have to be sent to Australia and all his witnesses would have to accompany him.
– No. A Court of criminal appeal does not re-hear the case. The “depositions are taken down and transmitted to the Court, which decides on points of law whether or nor a murder was committed. The Court may decide that it is only a case of manslaughter.
– And may order a new trial.
– Quite so. If the Supreme Court of a State decides that a man should have a re-trial, he ought to have.it.
– We would have to bring his witnesses, and during that time they would not be of any use to the Army.
– Would the honorable senator say that when the highest Courts of the land decide that a man is entitled to a new trial he should be prevented from having a. new trial?
– All his witnesses would have to be sent out with him.
– I rise to order. Senator Gardiner has submitted an amendment, the effect of which is to. determine whether the crime of murder and other crimes mentioned in the Act should or should not be punishable by death. The amendment suggested by Senator Elliott does not bear on the question, but relates to how such cases should be reviewed. I ask your ruling, sir, whether we are entitled, in discussing Senator Gardiner’s amendment, to consider the question of the review of sentences.
– The question before the Chair is that “’ the words proposed in Senator Gardiner’s amendment be inserted.” I understood that Senator Elliott was addressing himself to that question, and was merely suggesting an alternative method, in his opinion, of arriving at what Senator Gardiner desired.
– It is not exactly that.
– The honorable senator had not proceeded sufficiently far to enable me to determine what he actually desires. So far as the honorable senator has gone he is in order.
– I desired, first of all, to give notice of an amendment so that I would not be precluded from moving it subsequently.
– I cannot take a further amendment until that moved by Senator Gardiner has been disposed of.
– Then I understand, Mr. Chairman, that I shall have an opportunity of moving my suggested amendment at a later stage.
– Yes, after mine has been defeated or carried.
– I thought that perhaps, in view of the amendment which I proposed to move, Senator Gardiner might consider that it would meet the case.
– It does not meet his case.
– I want to test the feelings of the Committee on the abolition of the death sentence.
.- The Minister for Defence (Senator Pearce), in his last remarks in relation to this clause, answered a few of the questions which were exercising my mind as to what the actual position was. I understand that the procedure of the Defence Department during the recent war’ was not to confirm a death sentence at all, and that instructions were given that no Australian soldier should be executed for any offence, civil or military, while serving abroad.
– We refused to allow the death penalty to be imposed for the crime of desertion.
– Or for cowardice?
– That is practically the same thing. The Army Act covers it.
– And so does the Defence Act.
– We are amending a section of the Defence Act that makes it a capital offence, amongst other things, to desert to the enemy. The Defence Act, if not amended by this Bill, will still make it a capital offence to desert to the enemy, but a sentence of death for a capital offence cannot be carried out until it is confirmed by the GovernorGeneral. That law was in force for a period of the war - if not for the whole time - and I would like the Minister for Defence to make it clear why the policy, was adopted of preventing a capital offence being punished by death.
– There were no cases of desertion to the enemy.
– Were there no cases of cowardice under the Army Act which would have been considered capital offences ?
– Yes; but they were not capital offences under our Defence Act.
– Then, in effect, the Government refused to allow the death sentence to be carried out in practically all eases.
– The Defence Act would not allow us; but the Government were asked to provide: - which we would have had to do by an amending Bill - a death penalty for desertion, which we refused to do.
– That is for ordinary desertion.
– The position appears to be a little clearer; but the fact remains that during the recent war the . Defence Act provided for the capital penalty to be carried into effect for the crimes set out in the section we propose to amend, with the exception of murder. I understand, therefore, that throughout the war there were no cases in which any Australian soldier mutinied, deserted to the enemy, or committed any of the crimea set out in the section.
– No person in the Australian Army was sentenced to death for those offences.
– I think that is a very interesting admission by the Minister, because, in spite of the death penalty being in our Defence Act, there was not a single instance, during the five years of war, of an Australian soldier being convicted of any capital offence. This . is a compliment to the Australian soldier. The position is now somewhat clearer. The Minister says that in addition to this capital offence the Government were requested to provide the death penalty for desertion, and refused to do so.
– In my opinion they properly refused. Consequently none of the provisions of the Army Act applied so far as the death sentence is concerned, because they conflicted with the Commonwealth Government’s policy.
– With our Defence Act.
– And the policy of the Government.
– The Government could not override the Defence Act even if they wanted to.
– I think the Government rightly refused to allow the death penalty to be inflicted on Australian soldiers for offences that might have been outside the Defence Act and well within the ambit of the Army Act. I am not convinced that the capital punishment for murder should not be inflicted at the time or within a reasonable lapse of time after the commission of the murder. I am sympathetic with Senator Elliott’s proposal, but I think he, as well as my other military friends, said that trial by court martial under the Army Act, especially with the final appeal to the judge advocate-general, is one of the fairest kinds of trial within our experience, and it seems to me that unless the death penalty is imposed, or power to impose it is retained, a position of grave danger to the- soldiers of an army might be created. Senator Cox has given me one instance of a horrible murder having been committed; and I believe that had power to impose the death penalty been exercisable at the time, probably that crime would not have been committed. I am not by act, word, or deed going to give the military authorities much greater power than they have in Australia during a time of peace; but we are now dealing with time of war-
– And this is a war provision.
– In time of war the death penalty for wilful murder should be imposed, not as a corrective,, but as an intimation that there is a penalty for some of the things a soldier should not do.
.- I think Senator Pratten has misunderstood my amendment.
– The honorable senator must not discuss his own proposed amendment at this stage.
– I do not intend to do so. I merely mentioned that Senator Pratten said he was in sympathy with my amendment; then he proceeded to misconstrue it. Section 98 of the Defence Act provides that the death sentence shall not be enforced except for the crime of mutiny, ‘ .desertion to the enemy, or traitorously delivering up to the enemy any garrison, fortress, post, guard, ship, vessel or boat, or traitorous correspondence with the enemy, and that no sentence of death passed by a court martial shall be carried into effect until confirmed by the Governor-General. That should remain as it is. The crime of murder and the words “ within the limits of the Commonwealth” should be eliminated from the clause. Further than that, I am not prepared to go to words assisting Senator Gardiner. The very serious offence of mutiny, in which large bodies of armed men may break loose, must be drastically dealt with. Similarly, desertion to the enemy is a very serious offence. I do not know of any case in which, our own men deserted to the enemy, but a New Zealander deserted and took over valuable information. I am in favour of the death penalty being imposed for all such extreme cases; but I protest against any attempt to give away control over the lives of our citizens by the insertion of the words “ within the limits of the Commonwealth,” which means that the Government will have no control over death, sentences that may be imposed under this clause. I do not know whether honorable, senators remember a case that occurred during the Boer war. An irregular corps, commanded by a British ex-regular officer with whom three Australian officers, one of whom I knew very well, were serving, was operating in the Northern Transvaal. One of the Australians was a young man named Whitton, who enlisted with me, and was my Q.M.S. for some time. The other two Australians were
Morant and Hancock, the f ormer a South. Australian, and the latter from New South Wales. They rendered pretty distinguished service up to the time the incident to which I am aboutto refer happened. They made an attack on the Boers and were driven back. Captain Hunt, one of their officers, fell wounded. Subsequently, when reinforced, they renewed the attack, and regained their original position, only to find the ‘dead body of Captain Hunt, with every evidence that he had been brutally kicked to death by the Boers, and his uniform stripped from him. They captured a certain number of Boers, includinga man who was wearing Captain -Hunt’s uniform. Naturally they were exasperated and they held an irregular court martial.No one of course,can constitutea court -martial without the authority of the Commanderin Chief; but these Australians, under the guidance of a British, officer, constituted a court martial, sentenced the Boer prisoners to death, and shot them. Of course, the court martial being irregularly constituted, they became guilty of murder, and would be punished under this clause. It happened that one of the men killed was a German subject, with the result that representations, which could not very well be disregarded, were made to the British Government for the punishment of the crime.
SenatorRowell.- It was the Dutch people who took action. I believe they killed a Dutch clergyman.
– At all events, these Australians acted largely under the direction of the British officer, and constituted an irregular court martial.
– Under the Army Act?
-No because they had no authority to do that Whitton was only a boy of nineteen at the time, and he says he believed he had authority to act as the British officer had told Mm. They were brought to trial, and it is said that an opportunity was given to the British officer to escape, because his cell door was left open. At all events he disappeared. The Australian officers were sentenced to death, Morant and Hancock were shot, and Whitton was sentenced to imprisonment for life, but upon appeal to the Privy Council his sentence was reduced to three years. Eventually he was pardoned, because be had acted under the direction of a superior officer. That; at all events, is the story as it ‘is told in a book - The Scapegoat’softhe Empire, which he has written.
– Have you read the official history of that case?
– Then I suggest that you do so before you pass judgment on it.
– This book was published by Whitton after his return to thiscountry, and I understand the’ preface was written to it by the then Prime Minister, the late Mr. Deakin, who movedHeaven and earth to get the sentences remitted. Lord Kitchener deemed it ‘absolutelynecessary, for the sake of peace in -Europe, that thesemen should not be allowed to escape. Whitton claims that they were made scapegoats for the British Army. We do not want anything like that to happen again.
– They were not in the Australian Army at the time.
– I believenot but if this provision is inserted it will give the British Army authorities too much power over our men. For this reason I desire the elimination of the words that it is proposed to insert in the original section. I realize that murder should be adequately punished, but there are degrees of murder, and we should not subject our men to the rough and ready law of justice by court martial.
– But is not the judge Advocate-General a qualified man?
– I am not saying anything about the Judge AdvocateGeneral at all. We arenot discussing any particular appointment. Some may be brilliant examples of legal learning, as great as our own Chief Justice, but others may be bad lawyers possessing all the Other faults of a bad officer who are appointed Judge Advocates General. I see no objection to men, who are tried by court martial for murder, which is a civil and not a military offence, having their sentences reviewed here upon appeal to our civil Courts. All the evidence adduced could then be recorded, and any case could be dealt with just as criminal cases are dealt with upon appeal.
– just as Judge Ewing dealt with certain matters.
– Let us hope that we shall have in power Na Government which will appoint sound lawyers to such Commissions in the future. The proviso which I desire to insert stipulates that these murder cases shall go to a Court of Criminal Appeal-
– Order! The honorable senator must not prematurely discuss the proviso which he intends to move. The amendment of Senator Gardiner is now before the Committee.
– I desire to emphasize the necessity which exists for maintaining the right of appeal in the military offences mentioned to the Governor-General. Senator Millen was a little bit peevish with me the other night for obstructing the passage of this Bill.
– Which Senator Millen does the honorable senator mean ?
– Senator E. D. Millen. He said that we soldiers who had complaints - just complaints as we believed, were insisting that we be heard - were a lot of disgruntled malcontents, and that we should all be strung up.
– Is that all that I said ? I shall begin to think that, still more.
– The Minister thought that we should all be strung up, just as Senator Cox would shoot these unfortunate men rather than that they should “be granted a right of appeal.
– I did not say that. Put the right construction upon what I say.
Senator- ELLIOTT. - The honorable senator said that if a right of appeal were granted we should have to round up all the witnesses, so that the whole thing would be impossible.
– I say that a man gets a fair trial upon the field. If he committed murder, I would shoot him.
– Suppose that the High Court decides that he did not commit murder?
– If the honorable senator wishes to send back half the Army with the offender to Australia in order that the High Court may try him, let him do so.
– I am not in favour of Senator®’ Gardiner’s amendment to eliminate the death penalty. Some of us who were abroad upon active service., and who heard of the deeds perpetrated by men in uniform, would not wish to see them alive anywhere. It is rather peculiar to hear such consideration expressed for men who had no regard whatever for the lives of their comrades. That is all I desire to say upon this subject. I made it pretty clear the other day that I had absolutely no time for British Army methods. If the words “ within the limits of the Commonwealth” be inserted in this clause, it may empower those in command of the British Army at some future time to inflict the death penalty upon our troops who may be serving abroad. That I’ do not desire. I recognise the necessity for capital punishment.- Some honorable senators appear to Be rather confused in regard to the offences for which the death penalty may be applied under our De- . fence Act. They have mixed up the offence of desertion to the enemy with that of ordinary desertion. I would point out that a man who is on leave, and who exceeds his leave by twenty-one days, is guilty of desertion. Under’ the British Army Act that offence is punishable bv death, but under our Defence Act, which applied in England during the recent war, a man could be sentenced to death only for deserting to the enemy - a vastly different thing. If a man were found guilty of some of the offences enumerated in this clause, I fear that a hasty sentence might be passed upon him by British officers, without proper consideration being given to his case by some of our Australian officers. I would be content to leave the matter in the hands of the General Commanding the Australian Division, if he were an Australian officer. But I am not prepared - particularly in view of what we have recently read of certain officers in the British Army who appear to have acted rather hastily - to hand over to those officers the lives of our Australian troops. If the Minister (Senator Pearce) can suggest some method by which control may be vested in an Australian officer serving abroad, I shall be satisfied; but, otherwise, I shall vote to retain the clause as it now stands.
.- I think that honorable senators have gripped the position quite clearly. My amendment aims at the abolition of capital punishment anywhere - either in the Army or out of it. I think that a majority of the people of Australia share my view. Senator Earle seems inclined to vote against the amendment because he is of opinion that no punishment is too severe for some of the horrible deeds that have been committed. . Least of all is the death penalty. But it is not the horrors associated with certain crimes that we have to consider; it is merely the effectiveness of the penalty. What is the claim put forward on behalf of the death penalty? It is urged that the imposition of this penalty is a preventive of crime. Can we imagine the fear of death acting as a deterrent to crime in the case of soldiers who see their dead comrades being carried out from the line every minute ?
– But one is a glorious death, whilst the other is the death of a criminal.
– That is to say, as was put by Senator Pratten, that the finer feelings of these men are such that the distinction drawn between two kinds of death will make them fear death. The crimes which stain the records of nearly all military and naval nations, and which even . a century will not wipe out, are those caused by unwise death sentences which have been inflicted by superior officers. Quite recently, we have been celebrating the anniversary of Napoleon’s death. But the court martial which he held in Egypt constitutes the blackest stain upon his record. What darker stain is there upon Lord Nelson’s name than that caused by the republican surrender to the Allied Forces when the former were promised a free passage to France. We all know that when Nelson sailed into Naples he had the prisoners hanged to the masthead, whilst the Queen of Naples and Lady Hamilton were enjoying the spectacle. These are the deeds which have stained the escutcheon of nations. I have quoted the lives of two great’ men whose records are besmirched owing to the execution of the decisions of courts martial. Our own re-, cord has been similarly stained, although we have only recently become engaged in war. Personally, I am opposed to the death penalty . upon all grounds ; but more particularly am I opposed to it in the Army, where the atmosphere is so different from that which obtains in civil life. I ask for a clear-cut vote upon this question - the death penalty or no death penalty.
– In the absence of Senator Duncan, and upon his behalf, I move -
That the words “and (b) by inserting therein after the words ‘ court martial ‘ (second occurring) the words ‘within the limits of the Commonwealth ‘ “ be left out.
.- Earlier in the evening the Minister intimated that he would convince me that no case in which the death penalty may be inflicted can be tried in time of peace.
– The Defence Act gives nobody any power to inflict that penalty.
– The memorandum which has been circulated with the Bill sets out the clause in the form in which it is proposed to amend. It will read -
No member of the Defence Force shall be sentenced to death by any court martial except for murder . . . within the limits of the Commonwealth, and it shall not be carried into ^effect until confirmed by the Governor-General.
If there be no section in our Defence Act which provides that no court martial shall sentence a soldier to death in time of peace, the clause which we are now discussing must empower such a tribunal to sentence a soldier to death at any time upon any of the charges which are enumerated therein.
– We applied the British Army Act in war time. These are prohibitions upon the British Army Act.
– Is, there any objection to an amendment to strike out the word “ except,” with a view to insert the words “ unless Australia is in a state of war, and then only.” The clause would then read : -
No member of the Defence Force shall be sentenced to death by any court martial unless Australia is in a state of war, and then only for murder, treacherous mutiny, &c.
– We have already passed a clause which provides that no court martial may inflict a heavier punishment than three months’ imprisonment in time of peace.
– No court martial can try any person for the offences enumerated in this clause in. time of peace.
– I accept the assurance of the Minister. ‘ But the clause appears to empower a court martial to inflict this penalty either in time of war or in time of peace.
-brockman.- A . man cannot desert to the enemy in time of peace.
– Quite so. But murder and mutiny may be committed in time of peace. And so far as I can read the clause before the .Committee, a court martial is given power, subject to the concurrence of the Governor-General,’ to impose the death sentence for the offences referred to in the clause. I thought the Minister for Defence would refer me to some section of the Defence Act which explicitly provides that courts martial may not try offenders accused of an offence punishable by death while Australia is in a state of peace. In war time it is necessary very often that drastic action should be taken to punish offenders, and to deter others from the commission of like offences. Senator Gardiner said that liability to the death penalty would impose no restraint upon soldiers, but I am disposed to believe that the fact that they would be sentenced to a shameful death would have a deterring effect upon them. If the Minister can assure me that an offender under this clause must in times of peace be handed over to the civil Courts to be dealt with I shall take no further action, but if I do not get that assurance I shall submit the amendment ! have indicated.
I can only repeat my assurance that I am informed by the legal gentlemen who are advising me that no Australian soldier oan be tried in time of peace by a court martial for any of the offences referred to in this clause. Honorable senators will remember that in the Bill as presented to the Senate it was proposed to apply the Army Act to the Defence Force in peace as well as in war. In clause 18 of the Bill, in which that was proposed, they will find the following subclauses: -
If it had not been proposed by the Bill as first presented to apply the Army Act in peace time those two . sub-clauses - of clause 18 would not- have been necessary. They were inserted ‘because the draftsman realized that if we applied the Army Act in peace time we must include such provisions, otherwise the offences referred to in the clause now under consideration would be punishable by court martial. Section 98 of the principal Act becomes operative only in war time.
– I accept the Minister’s assurance on the point.
– I hope that Senator Foster’s amendment will be defeated. Senator Gardiner, speaking to the clause earlier in the debate, while arguing in favour of the omission of paragraph b, put up a strong case in favour of ils retention. The arguments used by Senator Duncan were also strongly in favour of its retention. I am as desirous of protecting the interests of men who may commit offences by seeing that they get exact justice as are Senators Gardiner and Duncan. Those honorable senators, if they are successful in securing the omission of paragraph b, will fail in their desire to secure the most satisfactory terms for accused men.. ‘ Senator Gardiner has pointed out that the atmosphere of active service is very different from that of civil Courts, and from that of a Cabinet room, in which Ministers may be sitting round a table merely considering papers. He pointed out very truly that many things are done on active service which must appear shocking to men who know nothing of the atmosphere of active service. That impresses me as a very strong argument in favour of the final decision coming from the soldier rather than from the Governor-General, which means the Cabinet, who know nothing about soldiering, or the conditions of soldiering. All these cold purely legal precautions are taken in the Army. 1 have already said in this chamber that in my opinion the fairest form of trial yet invented is the court martial. I stand by that statement.
– Others may hold a different opinion.
– I am expressing my own opinion, and I have had quite a considerable experience of courts martial as convening officer, confirming officer, presiding officer, defend- ing officer, prisoner’s friend, and in every other capacity.
– And the honorable senator has had experience of civil Courts also.
– I have had experience of civil Courts in several capacities. It is with my experience of the Courts that I have given the Committee my considered opinion of the court martial. There were in the Australian Imperial Force, on active service, and would be again under similar conditions, gentlemen who held military rank, but who, in the ordinary sense, were not soldiers, but lawyers. Those men analyzed evidence purely as lawyers in connexion with all trials before courts mar.tial. We therefore got the calm judicial consideration of men highly expert in military law and the principles of evidence, and their, conclusions went tp the confirming officers before they gave their decision.
– Was not that at a very late stage. of the war?
– The practice existed throughout the war, though it did not at first reach the state of perfection that it reached in the later stages of the war.
– Did the honorable senator ever know the judge advocategeneral by name?
– Yes. Analyzing the matter, the position was that there was a lawyer on the Brigade Head-quarters Staff, another on the Divisional Head-quarters Staff, another on the Corps Head-quarters Staff ; there was a whole staff of them at ArmyHeadquarters, there were more at General Headquarters, and finally, in. London, there was the Judge-Advocate-General, who had a large staff of trained lawyers at his disposal to assist him in reviewing all the cases which came from the armies operating everywhere. That was the system operating, and honorable senators will see that it provided for the protection of each case being considered from the calm and purely legal point of view. What further advantage would be given to an accused man if he were sent back to Australia with all the documents in his case, and he had here to go through the same performance of a mere examination of papers, because that is all it would amount to ? . But if . the final say is with the general officer commanding, advised as to the strictly legal point of view, he can take ‘that “into consideration, and, in giving his decision, has the discretion to exercise mercy and consider extenuating circumstances, according to his own knowledge of the circumstances and the atmosphere in which the crimes were committed. I have no hesitation in saying that if I were in the position of the accused man I would prefer to be dealt with by a man who knew the atmosphere in which I lived, and in which the crime had been committed, rather than by a man living” 10,000 miles away from the scene of tha crime.
– Still, if the honorable senator were sentenced to death, he would like to have an appeal to tha Governor-General in Council.
– If I were sentenced to death, I would prefer an appeal to the’ Commander-in-Chief in the field. The man who understands the atmosphere, and understands the soldier and the conditions under which he lives has a reasonable opportunity of knowing the conditions under which a crime wau committed. I hope, therefore, that Senator Foster’s amendment will not be carried, and that, in the interests of the men as well as of the Army, the clause will be allowed to stand as the Government have presented it to the Senate.
.- We have had a fine picture of the perfection of the military jurisdiction painted for us. It must be remembered, however, that the late war was exceptional in that the whole of the manhood of. Great Britain of military age was calledup - conscripted - and that in consequence . the military authorities had a wide field of selection from which to obtain legal advisers, to constitute legal tribunals. That condition of affairs did not exist in previous wars, which, in the main, were fought by the British Regular Army, the personnelof which by no means, affords the same wide field of selection among men with legal knowledge.
– But we are- dealing with the Australian Army, which must be a citizen army.
– The Australian Army, at any rate overseas, will probably be recruited by voluntary enlistment,, and leading legal men do not in such circumstances volunteer.
– How is it that you got there, then ?
– I do not claim by any means to be one of the leading counsel of Australia.
– How did you come to volunteer?
– I volunteered, if the honorable senator wants to know, because the Government sent me a circular’ asking me to call for volunteers in my battalion, and I had sufficient sense of shame not to say, “ Boys, are you going to the war? I am not going.” I put my name down at the top and said, “Boys, who is coming with me?” That is how ‘I came to volunteer, and I lost all my legal business during my five years of absence. I do not suggest that Senator Drake-Brockman is misleading the Committee, but he has perhaps misled himself by applying to all wars the exceptional circumstances of the late war. We are legislating, not for the late war, but for wars which will probably be waged on the more primitive lines of the wars of the past.
– Did not the same principle apply in the Boer war?
– They had judge advocates, but these were regular soldiers who had given a certain amount of study to the Army Act and to military law. Still they were not men of the type of Mr. Justice Brissenden and many others who were serving as junior lieutenants and available for duty, as they were in the late war. There were K.C.’s serving in the ranks in this war.
– But in South Africa we had the Militia Forces, and the Yeomanry, and the Irregular Army of Great Britain, as well as the regulars.
– Of course we had, but there were not amongst them leading barristers such as we had in the late war, from Australia and other parts of the Empire.
– Did the honorable senator know about all these lawyers roaming around in London and at headquarters ?
– I knew that during the closing year of the war we had on the divisional staffs and corps staffs men like Mr. Justice Brissenden.
– How many men in your brigade knew about them?
– Not very many. As a matter of fact my legal adviser for a long period was a man who, although he had passed his examinations, was not even admitted to the bar and had never practised. He had taken a certain course of study in the law, and had become familiar with the Army Act, but he was not by any means a man whom one could rely on as a sound adviser on a difficult and intricate point of law. But certainly on the Army Head-quarters Staff they had towards the close of the war extremely able men, and they sent back quite a number of cases for review. I say again that in discussing this clause it should be remembered that the circumstances of. the late war were quite exceptional.
– It is very interesting to me to hear Senator Elliott suggesting, defending, and advocating an appeal from the military officer per se to the Governor-General in Council in Australia, because I -recently had occasion to make some inquiries. I was asking that interesting question as to whether any of our soldiers had ever been -shot, or whether ever the threat to carry out that penalty was known to have been made. I was informed that it was an Australian officer who had once issued an order on the field for men to be shot in a certain eventuality. I had that order looked up, and have it here. We had to get a copy of it from the Australian War Museum, where these records are now kept. The document is as follows : -
Forwarded herewith are extracts from records regarding an order issued by an Australian Officer in France that troops hesitating to obey orders when being rallied and re-formed were to be shot. These, it will be noticed, are certified true copies of extracts from records held in the War Museum Library. (Sgd.) J. S. Treloar,
Director, Australian War Museum.
Extract from Report by Brigadier-General H. E. Elliott, of the 15th Brigade, on the 24th and 25th April, 1918.
At 12.45 p.m. (24th April), ‘ I received an order from the General Officer Commanding Division directing that the sentence in my B.M. 383 (which I had sent to him about 9.5 a.m.), beginning “All British troops,” and ending with the word “ shot,” is to bo cancelled forthwith. It is to be noted that this order had been in full force for nearly four hours, had been acted upon with excellent results, and it had not been necessary to resort to extremes at all. . (Certified true copy,.11.5.21.) (Sgd.) A. W. Pretty,
Chief Librarian, A.W.M.
Extract from Diary of General Staff, 5th Division.
Sender’s number, B.M. 383. Day of month, 24.
In reply to number AAA. 50 and 60 Battalions will move at once, in accordance with B.M. 368 and 369. The right of the 56th Battalion is at 0. 16 B. Enemy advancing from Warfuse Abancourt. Get into touch with troops on either flank. 57th Battalion will move as soon as possible, echeloned to right rear of 59th Battalion, and ultimately attack if required along railway to right of Villers Bretonneux, clearing it by an enveloping movement. Scouts in front as soon as past Aubigny line. All British troops to be rallied and re-formed as our troops marched through thence by selected officers, and on any hesitation to be shot.
Place and time,- 10.30 a.m. (Certified true copy, 11.5.21.) (Sgd.) A. W. Pretty,
Chief Librarian, A.W.M.
– To save the Minister any trouble, I quite admit the issuing of the order.
– The order, then goes on to give other directions for the battle.
– It was a very fine order.
– It may have been, but it shows that General Elliott was not then prepared to give even a trial. He was prepared to shoot first and give a trial afterwards.
– Quite so, and I will explain why. That has no analogy with this case.
– It may have been absolutely essential for General Elliott to give that order, but it is extraordinary that the same senator should now advocate in this chamber that there should be a trial, which he was notprepared to give in that case, and advocate also that even after the trial the sentence should be suspended until somebody at the other end of the earth could review the whole of the circumstances. I could understand a civilian who knew nothing of war conditions advancing that view, but it certainly comes with a very bad grace from an officer who issued an order such as I have quoted. The men to whom his order applied were deserters - they were not deserters to the enemy, and they were not punishable by death under the Australian law; they were only deserting to the rear. Yet General Elliott, in his capacity as an officer with the Australian Imperial Force, issued an order that they -should be shot if they did not rally.
– You must have been pretty badly rattled last week to have had that raked up.
– Senator Elliott is so fond of reminiscences that I thought I would give him a dose of his own medicine.
– I think it redounds to his credit.
– It may, in the minds of some people, but I cannot see how it can do so with those who are now urging not only that these men should have a trial, but that even after the trial the sentence should not be carried out overseas, and that they should be brought back to Australia. Senator Elliott even suggested that they should have the right of appeal to a Court of criminal jurisdiction. He gave those men no right of appeal.
We have the records of the reviews of all the death sentences. They all had to be reviewed by the General Officer Commanding in Chief, who was advised by the Judge Advocate-General. The reports of all the cases in which the death sentence was passed in the Army during the late war show that in89 per cent, of them the sentence was commuted by the General Officer Commanding,, the military officer who “ cannot be trusted to do justice.” It may be argued that the fact that he commuted 89 per cent, of the death sentences passed by courts martial showed that the courts martial were too extreme in their penalties,, but
I do not think that is a fair inference. The inference is that the General Officer Commanding extended clemency in 8!) per cent, of the cases where a finding of guilty had been recorded and sentence of death had been passed. That is ‘ a greater percentage of’ instances of clemency than will be found in similar appeals under the civil law of our State.
– In the remaining 11 per cent, was the death sentence carried out?
– It must have been.
– Did you not tell me a little while ago that no Australian soldier was shot?
– These are the cases of the whole British Army, -and not of Australian soldiers only. It can be seen that where the review take’s place - and it is a review, and not an appeal -clemency is, exercised in the greatmajority of cases, I feel that we can quite safely leave the review- to the General Officer Commanding. The provision in the- Army Act> at page 435, relating to discipline and. courts martial, reads as follows: -
Provided that sentence of death or penal servitude awarded by field general court martial shall not be carried into effect unless or until- it has been confirmed by the general or field officer commanding the force with which the person under sentence is present at the date of his sentence.
Therefore, every one of those cases must he reviewed, and the sentence can he confirmed only by that officer.
– And it must be. passed by a unanimous court to begin with.
– Yes. We propose in connexion with our Citizen Forces to establish a legal corps, which will consist of legal gentlemen who are associated with “the. Citizen Forces,, and who will receive a training in court, martial procedure.
– I. think it is my duty to take this opportunity of replying to the attack which has just been made upon me by the Minister for Defence (Senator Pearce). The order to which the Minister has referred has been taken from my brigade records. I was, the’ officer responsible, for placing it there, and that fact alone proves that I was in no sense ashamed of it.. I remind honorable . senators that at that very time we had received . a direct order from General Haig that every man must, if necessary, die in his tracks. Further, I had made representations to the British authorities that the manner in which the British troops . who were holding VillersBretonneux were disposed would lead to sudden disaster, and it was obvious to me that they, could not hold on to VillersBretonneux if attacked. Their . position at’ that time was the key of the whole, situation in France, and on them, and. us in.. a sense the fate of the. allied, armies in . France, in, a. . large,. measure depended. On one hand my own brigade lay. in.;the valley of the Somme, and. on the other lay the French left in the valley of the Luce, near Hangs ard.-If the German forces had succeeded in holding. VillersBretpnneux . they would have driven a wedge between the French, and British, and the only course that remained would have been for the British to retreat to the coast and then embark for Bordeaux and join up again with the French forces, abandoning Paris to the enemy. That was unthinkable. About 4 o’clock in the morning the barrage opened up, and I issued orders for my men to fall in under arms. At that time the British troops started to stream back in utter rout, and at 9 o’clock in the morning an effort was made to stem the panic because there, was a, great danger of the British troops sweeping away with them many of my own men. Any one not accustomed to military operations, will” find it difficult to realize what really happens when a panic once commences. It was necessary ‘for a time to prevent my men from taking; the -law- into their own hands- and opening fire on -the retreating men, whom they regarded as. -cowards. It.-was-at that, time that I issued” the order” mentioned,, and, strange as if may seem to the Minister for Defence, we had not to fire a. single shot, but . merely approached the men, and in front of the pistol compelled them. to fall’ in. They did so, and the colonel of the British regiment, who. had failed- to rally, his men, came to meand himself recommended the two officers’ intrusted with the task for the Military Cross for the magnificent work they had performed in rallying his troops.
– I am not cavilling at the order issued.-
– It was quoted inan endeavour to discredit me.
– It was . merely quoted’ to show that you. do not believe in a trial.
-It was my. duty to act as I did in that instance because it was. a case of extreme urgency. I wasquite aware that, if my officers acted on. that order,. I could.be tried for. murder, and I mentioned, that- in- my- report; I would;, however, have -been.- in a position., to., appeal.- to His; Majesty- the King . for a remission of’- the: ‘sentence orfor a free pardon. .
– Were these -British ‘ troops under your command?’ ‘
– No ; they were holding the front, on my. right, and, -as I have mentioned, there was a great danger - of my troops being swept away- with -them- in the panic. When these British troops were rallied by our men they fought bravely; but it was necessary at first to take the most drastic steps to stop the panic that had commenced. I am ready, if the Minister for Defence thinks I committed an offence,- to be tried by any Court which he may select.
– I have not suggested that.’
– At the same time as I communicated the order to my junior officers I sent a copy of it by wire to my Divisional General,, and my superior officer held it before him for four hours until the work was done, and then by direction of General Birdwood it was cancelled. Possibly, because it was hoped that then any record to the discredit of the British Army would be wiped out.
– Is the British Army such a rotten Army?
– The British Army is just as good as any other Army, but at certain times the best of armies are subject to panic.
– Does it not apply to all armies?
-Yes. My action was necessary at an extremely critical time to prevent the panic extending to our own troops. Those who are familiar with the history of the Peninsular Wars will remember that the famous Light Division, said to be the most famous body of disciplined troops that has ever existed, was on one occasion seized with sudden panic, and fled. Therefore, knowing my military history, I was prepared, even with my own troops - there were none finer in the world - to act as I did, because I knew that the whole German Army was coming, on, and there was every possibility of a general rout. Moreover, we had received an order from General Haig that every man must die where hestood rather than retreat. I took the law into my own hands, although I was liable to be tried for murder.
– You did not take much risk.
– I was taking a great risk under the law. The order which the Minister mentioned was actually adopted by the British authori ties as the order for the attack on Villers:Bretonneux and they actually took credit for it by the publication of a congratulatory order in which it was stated that “the idea so brilliantly conceived by the staff of the 3rd Corps (British) was ably and gallantly carried out by the 8th British Division, assisted by the Australians.”
– If that situation were justified, then the Minister for Defence is justified in submitting this clause.
– He is not. That was necessary during a crisis, and if I could not have justified my action I would have been tried by court martial for murder. Supposing any of those men who were running away had been tried by court martial and sentenced to death, I think that they should have had the right to appeal, because when I made’ further inquiries I found that some of them were ordered by their officers to run away. It is, therefore, quite clear that some of them would have had a good’ case.
– If you had shot one of those men it would have been for obeying an order.
SenatorELLIOTT. - It was necessary under the circumstances, and he would have been shot by my order for refusing to obey the later order, which cancelled his previous order to retire.
– What would have happened if you and your men had run away ?
– I imagine that the Germans . would have been in Paris pretty soon.
– That was the opinion of the Minister for Defence at the time.
– I am not condemning the order.
– It is an old saying that necessity knows no law, and that was one occasion on which I had to act promptly; but that must not be taken as a precedent. Such extreme action could only be justified by extreme necessity. I think honorable senators will realize that there is no analogy between the case submitted by the Minister and the point I have been arguing on. In the circumstances I have outlined, it was necessary to act promptly, and I did so, realizing that I would be responsible for whatever orders I issued.
– I regret very much that the Minister for Defence (Senator Pearce) has adopted the line of attack he has by referring to an order issued by General Elliott during a period of war.
– I suppose the honorable senator suggests that he should be allowed to attack me, and that I should not have the right to reply?
– All I can say is that it is very discreditable on the part of the head of the Defence Department to attack in such a way an honorable senator who has rendered very valuable service.
– I am not attacking him.
– The Minister for Defence is the mouthpiece of the Army in this Chamber, and because Senator Elliott has been criticising somewhat severely the Bill which the Minister is handling, he has taken this opportunity of getting a little of his own back, and in what I consider a very discreditable way. The Minister for Defence is learning his business very well, and is endeavouring to acquire the art of bomb throwing. In this instance he has miserably failed, because he has been handling a “dud,” and the people from one end of this country to the other, when they read in cold type the attack which the Minister has made upon Senator Elliott, will have a different opinion of the Minister than they held before. To say that there is an analogy between an officer faced, not only with disaster to his own troops, but disaster to the whole -of the Allied Forces, and the question of the right to appeal, is ridiculous in the extreme.
– Men who ran away would have to be brought to Australia for trial if Senator Elliott had his way.
– The Minister’s reason for introducing such a far-fetched illustration will be judged by the people outside, who will realize that he is only endeavouring to get even with a man who has caused him some little irritation during the last few weeks. The Minister has not sufficient imagination to realize what the position was at that time. , -
– I do, quite well.
– If the Minister did he would never attempt to use an order such as that quoted to discredit Senator Elliott. Some one said a little while ago that I was not logical, but I know . that I am opposed -to the death penalty. I am in favour of a man condemned to death having every opportunity of showing that the penalty imposed is not a fair one. My heart fills with pride to think that we had an Australian officer who, in the face of overwhelming disaster, had sufficient pluck, courage, and determination to do what Senator Elliott did, and I am sure that sentiment will ring from one end of Australia to the other.
– But Senator Elliott believes in a trial?
– The position is totally different when a general is faced with a deserting army. I do not want to praise the Australians to the detriment of the British Forces, but I think I have read sufficient of international warfare to realize the danger that results when troops become panic-stricken. Terror appears to be in the atmosphere, and it spreads like a disease, not only from man to man, but from company to company. I believe that when the Minister has considered the position a little more closely, he will realize that statements such as he has just made reflect little credit on himself, and much less on the Senate, particularly when his references are to a man who rendered such valuable service during the war.
Question - That the words proposed to be left out be left out - put. The Committee divided.
Majority . . . . 5
Question so.resolved in the negative.
– It will be remembered that the Minister (Senator Pearce), when speaking to this clause, said he would like to get the opinion of the Committee as to the right of appeal which a considerable section of honorable senators think should be given to the soldiers. I would prefer to see the penalty of murder described as “ wilful “ murder, and that sentences for any of the other offences, which may be regarded as really military offences, should not be carried into effect unless confirmed by the Governor-General in Australia. This would retain the right to appeal except in cases of wilful murder. I think my purpose will be attained by moving to insert after “ except for “ the words “ wilful murder.”
– I may point out to the honorable senator that by negativing Senator Poster’s proposed amendment the Committee decided that paragraph b of clause 44 should stand. Consequently, the honorable senator may not move his amendment.
– I think Senator Pratten could secure what he desires by adding to paragraph b a proviso that no sentence of death except for wilful murder shall be carried, into effect until confirmed by the Governor-General.
– I thank my honorable friend for the suggestion, and I move -
That after paragraph (b) the following’ words be inserted : - “ Provided that for no offence excepting murder shall the death sentence be carried into effect until confirmed by the GovernorGeneral.”
– Surely desertion in the face of the enemy is as bad as wilful murder ?
– Very much worse, because it may endanger the lives of hundreds of thousands of the soldiers.
– I submit my amendment because I am not prepared to indorse the proposal to impose the death sentence upon Australian soldiers for any offence except that of wilful murder without their having the right of appeal to the Governor-General.
– I could understand Senator Pratten ‘s amendment if he desired that a sentence of death for murder should not be carried into effect until confirmed by the Governor-General, because murder would be held to be a civil offence. But the other offences, such as desertion to the enemy, traitorously delivering up to the enemy any garrison, forts, posts, &c, would be purely military offences. The honorable senator has approved of sentences of death in the case of murder without confirmation by the Governor-General, but now he wants sentences of death for those other purely military offences to be confirmed by the Governor-General before being carried into effect. ‘ I venture to say there is more necessity for such sentences to be carried out promptly, as an example to the troops and for the restoration of confidence. If troops knew that a . number of their comrades had been sacrificed by a traitor who had not been adequately and immediately punished, but who was being sent to Australia in order that his case might be reviewed by the GovernorGeneral, I venture to say that it would not have a very good effect upon the remainder of the men..
.- I want to draw the attention of honorable senators to a definition of mutiny in the Army Act -
The term mutiny implies collective insubordination or a combination of two or more persons to resist, or to induce others to resist, lawful authority. . . .
I warn honorable, senators of the criticism that is going to descend upon them presently when the public become aware of what they are doing in regard to thismeasure. We have already passed somemost extraordinary clauses, despite my protests. It is provided that an Australian officer who may have rendered the most distinguished services abroad shall be required to pass an examination before he can be promoted to a higher rank than that which he may have held on active service, whereas one of those second lieutenants who ran away and was disarmed by my men may, if he comes to Australia, be promoted to the rank of major-general without passing one single examination.
– He might get some of his own back then.
– This is the position we find ourselves in through following the Minister. I have no doubt that the Leader of the Opposition will make a great deal of capital out of the proceedings in this Senate, but I cannot allow the party to tumble into this further trap without pointing out that it is baited. We are deliberately handing over the lives of our soldiers, the men who may volunteer for foreign service, to the Army authorities. Mutiny is defined as collective insubordination - combination of two or more - to resist lawful authority, and I may remind honorable senators that on one occasion in France the whole of the Australian Imperial Force, with certain exceptions, mutinied. We received an order that owing to the cessation of recruits from Australia certain battalions were to be disbanded, and, with the exception of my own brigade, every brigade that received the order point-blank refused. They said they were not going to be disbanded. They were going into the line as their own units, and under their own colours.
– - They were too valuable to shoot.
– They were. It was well known that if any British brigade attempted to shoot them the British brigade would be shot first. There is no question about that. My own brigade, simply by my influence over the men, and by my promise that they were not going back to the Fifth Army under General Birdwood, obeyed the order.
– I .thought you said all the1 Australian Imperial Force in France mutinied. Now yon say all except your brigade.
– I thought I made it clear ,that I said the whole of the Australian Imperial Force, with certain- exceptions. The Gallipoli -brigades were exempted. This made it harder for men in the other brigades. The order was that one battalion in each brigade should be disbanded. The whole of the brigades to which that order applied successfully resisted it and asserted their will. The provision which we are now asked to insert was not then in force, otherwise an endeavour might have been made to make an example . of those troops. But had the death sentence been passed upon any of them, the matter would have had to be remitted to Australia, where it would have been the subject of review.
– The honorable senator admits that if effect had been given fca the law in regard to mutiny, it would have cut out about 10 per cent, of the Australian troops one way or the other.
– The answer to that is that the authorities did not do it.
– -Because they had , not the power to do it without the con-
Bent of the Governor-General.
– And yet we are now being asked to abandon that power of review.
– I am willing to give the military authorities power to inflict the death penalty overseas only in the case of wilful murder. I am not prepared to empower military, officers to inflict that penalty for any of the other offences enumerated in this clause without an appeal to the Governor-General, and without giving our soldiers the same rights as they possessed during the late war.
– We appear to be discussing amendment after amendment; and yet every time criticism is levelled against the clause in regard to, the doings of Australian troops abroad, the Minister replies, “ Yes, but these things were not done.” Seeing that our Australian soldiers did so well under the conditions which ‘existed during the late’ war, and remembering that it was not necessary to inflict the death penalty for any crime committed by them, why in’ the name of God are we now asked to insert new clauses which are intended to tighten up our Defence Act, and to confer more power upon military officers ?
– We are only providing for one new offence.
– I referred to new clauses and not to new offences. I sometimes think that the Minister is becoming very military-minded.
– Getting militaritis
– Yes. We have had an exhibition to-night of what the military men can do-. What chance would any member of the Australian Imperial Force have, if he were being pursued by a higher authority in the way in which Senator Elliott was to-night? Upon the one hand we are told that the Australian Imperial Force did remarkably well during the recent war, that it was not necessary to inflict the death penalty upon any of its members, that it was equally unnecessary to give this power to officers overseas, and especially British officers, whilst upon the other hand we are assured that we ought to place this very power in the hands of officers, perhaps, of other nations, who may have command of our troops abroad in the future.
– Our divisions will always be commanded by our own officers.
– We hope so. But they were not thus commanded at the beginning of the- recent war. . - Further,’ I take it that under the British Army Act the General Officer Commanding would -not be the officer commanding the Australian Division.
– It is the General Officer Commanding the unit who is con-
– We have been told to-day that all these cases go from the General Officer Commanding the unit to divisional head-quarters, then to general head-quarters, and then across to London. Senator Drake-Brockman, withhis great legal knowledge, has pointed out to us the wonderful army of learned lawyers who so well looked after the Interests’ of our Australian troops during the late war.
– It is -the General Officer Commanding who is the “ boss cookie” of the lot.
– And he might be some English aristocrat who was put into the Army because he was one of the useless members of the family who could not go. into the’ Church. Yet such a man might have power given to him over our Australian soldiers. _ I would not object to this authority being vested in Australian officers, but to vest it in British officers - especially as it was not required during the late war- is a proposal which, to my mind, is quite unwarranted.
Question - That the words proposed to be inserted be so inserted (Senator Pratten’s amendment) - put. The Committee divided.
Majority . . . .7
Question so resolved in the negative.
– As -the Committee would not accept my amendment for the - omission of the words “ within the limits of the Commonwealth,” I shall vote against the clause. I could not vote for the amendment just negatived, because rather than accept a little I had to refuse everything. I prefer to vote against the clause to accepting any portion of it to theexclusion of things which I consider as important as those for which it provides. Senator GARDINER (New South Wales) [10.13].- I shall join with Senator Duncan in calling a division against the clause, chiefly in the . spirit of brotherly _ friendship, and to give him an opportunity of explaining to One section of the people why he voted in one way, and to another why he voted in an entirely different way.
– Is it too much to ask the Minister (Senator Pearce) to postpone the consideration of the clause! If he will not, I indorse what has been said by Senator Foster. There is no reasonin peace time for provisions of this kind. We have just come through five years of war,, and so far as Australia is concerned another war is exceedingly improbable for a very long while. Therefore we should not now endeavour to increase the power, prestige, and domination of a military caste or clique. The general effect of the Bill is to tighten military discipline, to increase military punishments, and to make military officers still more important. A large section of the Committee - possibly; if hearts couldbe searched, a majority - is against the clause, and I ask the Minister to recognise this. To strike out the clause would leave matters in statu quo, and would not weaken in any way the authority military officers have now. I hope that it will not get abroad that we have reimposed capital punishment on our soldiers.
.- The fact that we have just passed through a war make’s this the right time for reviewing our defence legislation, so that the lessons we have learned may not bo forgotten. There were only two convictions for murder in the Australian Imperial Force, though there may have been more murders committed. One of the men convicted bad murdered his mate. Yet because of the omission of the word “ murder “ from the Defence Act that man could not be punished.
– Not punished nt all? ‘
– He could not be punished. “We propose “now to rectify a grievous omission. Nearly every one of these clauses has been framed on the experience of the war. If we do not provide for these things now they may be forgotten later, and should another war happen, which God forbid I Australia may embark upon it with an imperfect machine.
– But the Minister wishes to tack on a number of other things.
– I am nob tacking on anything. All that this clause does is to provide a penalty for the crime of murder when committed overseas by a member of the Australian Army.
– The Minister (Senator Pearce) has inserted words which take from our officers and soldiers the right of appeal which they possessed throughout the war. That there were only two convictions for murder, notwithstanding that, according to him, that offence was not punishable as murder, is a remarkable tribute . to the good conduct of our soldiers, and under these circumstances it is amazing that the Minister should insist on many of the provisions of the Bill. Experience has shown that Australians oan be trusted not to abuse lenient treatment, and to give’ the- right of appeal would not cause the1 collapse of military discipline that seems to be feared’. The Minister on another, occasion admitted that when he entered upon the administration of the Department at the beginning of the war he knew nothing about Defence matters.
– I did not admit anything of the kind.
– The honorable gentleman told us that he was selected as the least able of the Ministry to deal with these matters.
– Surely the honorable senator recognises that he was making a joke. He must have some sense of humour.
– The Minister told us that he,, on taking office, read one book about war, Henderson’s Stonewall Jackson. Afterwards when pressed, hesaid that he had read other books, and when asked for the names of them, he replied, “the Bible.”.
– What I said about my appointment to the portfolio of Defence referred to what occurred in 1908, six years before the war.
– The- honorable gentleman said that, having a completely vacant mind on military matters, he had read Stonewall Jackson. I pointed out to him that that was an extremely tech- nical work.
– Stonewall .Jackson is dead.
– Although he has been .dead for nearly sixty years, the Minister referred senators to his book, and asked them to read it, if they wished for enlightenment on the. subject of .warfare. The debates which have taken place here show that whatever book the Minister- - read on war he learned very little from it. I know the effect of taking a Heavy meal on a starving stomach, but these debates have been a revelation to me of the effect of a heavy mental meal on a vacant mind.
– Is . that - the joke which the honorable senator fired off at the unfortunate school boys in Ballarat ?
– I am not at all sure of ‘the exact nature of the chemical reaction which, occurred on that occasion. I do not know whether the result was a fit of indigestion from which arose a nightmare, or a species of intoxication, but the Minister for (Defence appears, as it would seem from the result, to .have seen himself in a vision rising a figure in shining armour as a greater statesman than Lincoln. ,
– I rise to a point of order. It is known to honorable senators, and to some people outside, that I am a teetotaller, and I ask whether the honor-‘ able senator is in order in suggesting that I was intoxicated.
– I think the honorable senator was speaking in a Pickwickian sense only. I do not think that the Minister’s point of order was taken otherwise than in jest-. I ask Senator Elliott to resume, but I must say that I have, found it somewhat difficult to connect his .remarks with the clause before the Committee.
– I am merely endeavouring to point out that in following the leadership of the Minister for Defence, honorable senators should have regard to his military education, or rather to his lack of u. The Minister, in the speech to which I have referred, said that from the Life of Stonewall Jackson he’ derived the great principle that if he gave an officer command of forces, he should hand them over to that officer body and soul in order to insure victory. He said that although he had read the Bible, ‘ He did not arm Australians with shanghais merely because he found that David slew Goliath with a sling. But as a matter of fact, he did arm the Australians with’ shanghais, and pretty rotten shanghais at that. ‘ I thought that we had reason to blame the British War Office for supplying us on Gallipoli with shanghais which broke when they were stretched,,’ and the bomb which I attempted to direct against the Turk chased me down the trench. I did not previously know that the Minister for’ Defence supplied them to us from King David’s Ordnance Stores. I have not a word to say against the Jews; they gave us Sir John Monash.
– The honorable senator’s remarks, are not relevant to the clause.
– But when the Minister made a deal with the Jews in shanghais, we might have expected that he would be taken in, and the Minister was taken in. The Minister told us that he saw from the Bible that the jawbone of an ass was a powerful weapon, but he did not issue it to the Australians.
– The honorable senator must address himself more closely to the clause.
– I. am endeavouring to show the Committee how little fitted to carry on. this business the Minister for Defence really is. He said that he did not arm the Australians with the jawbone of an ass because he found that weapon mentioned in the Bible; but I say that the debates which we have had on this Bill indicate that the honorable senator armed himself with that weapon., recognising it as a family heirloom. By the use of that weapon, he has climbed to his present position, and his continued use of it during the discussion of this Bill has led the Committee into the position in which- it finds itself or will find itself before the public and the- Army, an object of ridicule and contempt.
– I rise to refer to a statement made by the Minister’ for Defence (Senator Pearce) in concluding his last remarks. He said that men who had committed murder while abroad, because of the absence of this provision, could not be punished.
– Could not be punished for murder. They could be tried for manslaughter only.
– That is a different statement altogether from that which the honorable senator has already made. I interjected, “ Could not be punished at all ? “ and the Minister eat down without replying, leaving me . and other honorable senators under the impression that those men could receive no punishment because of the absence of this provision from the Defence Act. Our men, while abroad, were under the British Army Act in respect of everything in connexion with which the Army Act was not inconsistent with our Defence Act. If our Defence Act made-no provision’ for. a penalty for murder, surely there is some punishment provided for that offence in the Army Act.
– Section 98 of the Defence Act says that the death penalty shall not be inflicted except for certain offences, of which murder is not one. .
– I do not accuse the Minister of deliberately misleading the Committee, but hu certainly said that” these men could not be punished.
– They could not be tried for murder, because, under the Army Act, the punishment for murder was death,and we had said in our Defence Act that the death penalty should not be inflicted except for- offences of which murder was not one.
– I suggest to the Minister that we might adjourn the further consideration of this clause. He surely will not contend that because a man could not be punished by death for murder, he could not have imposed upon him any other penalty than death.
– He could not be tried for murder.
– We have become so. tangled up as to what is covered by the clause that I suggest that an adjournment now would help us to get more rapidly through the Bill. I can assure the Minister that I am as anxious to get through this Bill as he is.
Question^ - That the clause ‘stand as printed - put. The Committee divided.
Majority . . . . 8
Question so resolved in the affirmative.
Clause agreed to.
Clause 45 agreed tQ
Clause 46 (Summary conviction).
.- This and the succeeding clauses aTe consequential , upon the application of the Army Act. I ask, therefore, that- the Committee negative both.
Clause 47 negatived.-
Clause 48 -
Section. 103 of the principal Act is ‘repealed, and the following section inserted in its stead: - “ 103. ( 1 ) A person . shall not bo tried by court martial for any offence against the Army Act or - the’ Naval’ Discipline Act unless- the trial begins within three years after the com- mission of the offence.
” (4) Nothing in this section applies to the offences’ of mutiny, desertion, or fraudulent enlistment, or to ah offence committed outside Australia against section 17, sub-section (4) or (S) of section 18, sub-section (2) of section 23, section 25, section 20, sub-section (5) of section 30, or section 41, of the Army Act, or to an indictable offence against this Act committed outside Australia.”
.- Although there is reference in the clause to the Army Act, it is necessary to retain it. In the proposed new . sub-section 4 there is comprised the addition of offences against specified sections of the Army
Act, for the. trial of -which’ limitation of time is not to. apply. These offences are offences of a fraudulent nature. One, for example, deals with fraudulent misapplication or embezzlement of ‘ public moneys or goods. Another deals with Stealing, embezzlement or receiving goods or money the property of a comrade or -a regimental institution, or of the public.. Another deals with offences of a fraudulent nature or of disgraceful conduct of a cruel, indecent, or unnatural kind. Another deals with fraudulent actions in respect of the sale of provisions to camps., Another deals with fraudulent manipulation of army documents relating to pay and other matters. Another has to. do. with wilful false evidence on oath before ‘ a court martial; another with taking from persons money or reward for excusing persons from their liability in re’spect of billeting soldiers; and still another with offences of treason, murder, manslaughter, rape, or any civil offence ordinarily punishable by the law of Eng- land.’ The waiving of die limit of time for trial is necessary as, except in very few instances, offences committed outside Australia cannot be .tried by civil Court in Australia owing to want of jurisdiction, nor, with the present limit of time, can they ordinarily be tried by court martial in Australia after the offender’s re-: turn. One recent case is that of an officer who was a paying officer in one of the camps in England. He manipulated the pay rolls so as. to make it appear that he had paid the officers more than he actually had, and he retained the balance. The fraud was not revealed until the pay books were audited some time afterwards ; and to take action was impossible, as the officer had returned to Australia and been demobilized for a period over the present limit of time prescribed. The addition of the words at the end of the proposed’ sub-section 4, “ an indictable offence against this Act committed outside Australia,” are necessary, in view of the new section 56 embraced within clause 19 of this Bill, which applies the Defence Act to the Militia Forces outside the Commonwealth.
.- The wording’ of this clause suggests that the Government are deliberately seeking to legislate to set forth that if a case is not taken up within three years the’- party concerned shall not be prosecuted.’ Why should we put s limit of three years upon the period, such as ‘is. here proposed ? The Committee is being asked to go out of its way to agree to a very short limit in respect of what may be very serious offences.
-Eyerything will have been revealed within three years after the termination of the war, because the whole business will then have been wound
– Nevertheless, it would appear as if this Committee is to deliberately acquiesce in the insertion of ‘a new section in’ our defence legislation, by which we shall be relieving from all anxiety a person who may have committed a very serious offence. If that is the ‘ intention of the Minister (Senator Pearce)’ it is wrong, and I oan be . no party to it. Senator Elliott has cited a case of a man- who committed an offence and escaped, from Britain, but who, twenty years later,, was apprehended and sent back to England, was tried, and was hanged. The lapse of all that time in his case did not . obliterate the offence. I am not disposed to assist in any form of legislation by which a person who has committed what may be a grave offence will bo able to say after three years, “ Now I am free., and the . whole affair is off my mind.”
– Ifthe offence has been committed outside of Australia the case may be dealt with at any time, while if it has been committed inside Australia it should be known within three years.
– If this clause is agreed to, “can those persons who may have committed serious offences be punished by our civil Courts?
– That being so, I am prepared to allow the clause to pass.
.- With regard to this particular point, I should say . that the person could not be so punished by our civil Courts’ if the offence constituted a breach of the Army Act, and was committed outside of Australia, in which circumstance the offender would have to be tried by court martial. The period of three years is the limit set out under the Army Act, and grave offences not of a military - nature are excluded under the proposed sub-section 4.
– I note that the Army Act is specifically mentioned in sub-section 4. What consequential amendments will . be necessary therein in view of the rejection by the Committee- of the proposed incorporation of the Army Act in this Bill ?
– Not any, because it is only where they have been under the Army Act during a war.
Clause agreed to.
Clause 49 -
After section 103 of the principal Act tha following section is inserted: - 104. During any term of detention, imprisonment or penal servitude , imposed ‘on a member of the Military Forces for an offence against this Act or the Army Act, the member shall, notwithstanding that he is dismissed or discharged from the Military Forces or would, but for this section, havo ceased to be subject to this Act or the Army Act in the manner in which he was subject at the time of the commission of the offence, remain subject to this Act and the Army Act in that manner; and if the’ member was not, at the time of the commission of the offence, on war service or on duty, he shall be deemed to be, during such term, on duty within the meaning of section 55 of this Act.”
– I move -
That . all the words from and including “on a member” (lines 4 and 6) be left out witha view to insert in lieu thereof the following words : - “for an offence against this Act or the Army Aet, on a person who was, at the time of the imposition of the sentence, or at the time of the commis-‘ sion of the offence, a member of the Military Forces, the person, notwithstanding that he ceases to be, or has, before the’ imposition of the sentence, ceased to be, a member of the Military Forces, shall be subject to this Act, or to this Act and the Army Act, as if he were a member of the Military Forces performing military service.”
This is a consequential amendment on the Committee’s rejection of the application of the Army Act in peace time. ‘ The whole purport of the clause, as amended, will then be that, where a person was, during the. war, subject to the Army Act, and Was sentenced, notwithstanding that he has ceased before the . imposition of the sentence to be a member of the Military Forces, he shall . be subject to this Act, or to this Act and the Army Act, as if he were a member of the Military Forces performing military service. That is, he shall be subject to this Act and /or the Army Act while, he is undergoing the sentence.
.- This is evidently a provision . for continuing the imprisonment of ‘those -men who. ‘were sentenced during the war. Some were punished, I know, for very serious forms of crime, hut the war has been over for nearly three years, and some were sentenced a considerable time before the war ended. I do not suppose that there are many of them in gaol now. Why not let them out, making the allowance that they were performing an extraordinarily difficult task under conditions that probably drove some of them insane? Instead’ of amending the Act in sucha way that we can still keep them in gaol, the Minister might well make a clean sweep of it, and say that’so far as the Australian Imperial Force is concerned, we shall have no more of its members in prison.
-brockman. - What about the man who, in cold blood, murdered his pal ? ‘
– I do not know the facts of the case, but he has probably been in gaol long enough.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 50 -
Section 105’ of the principal Act is amended by omitting therefrom the word “ desertion “ and inserting in- its stead the words “ mutiny, desertion or fraudulent enlistment or any offence committed outside Australia against section 17, sub-section (4) or (5) of section 18, sub-section (2) . of section. 23, section 25, section 29, sub-section (5) of section 30, or section 41, of the Army Act, or an indictable offence against this Act committed outside Australia “.
Station proposed to he amended - 105. Any person who is - or hasbeen a member of the Defence Force may be tried at any time by court martial for the offence of desertion.
– This is. complementary to the amendment effected . in section 103 of the principal Act by clause 48. It enables certain classes of offence to be tried at any time. This is one ‘of the -clauses bearing on the point raised by Senator Gardiner.
– I fail to see the necessity for the clause. If any men were guilty of mutiny they should surely have been tried for it at the time. I can understand the offence of desertion being punishable at any time, because it is necessary to wait until we catch the man before we can try >,him. I -do not know what the other sections referred to here relate to,, but it is asking . us a good deal to expect us to pass this clause without a much fuller explanation of its meaning from the Minister.
– I am not clear as to the incidence of what we are agreeing to. Like Senator Elliott, I am somewhat afraid that, under the guise of these numerous provisions, particularly as they refer to the. Army Act, we may be incorporating in our defence legislation a good many of the sections of the Army Act and ‘be entirely unaware of what we are doing. I think I am within my rights in asking, not only that the clause should- be read, but that the Minister should tell us what is provided by section 17, sub-section 4 or S of section 18, sub-section 2 of section 23, section 25, section 29, sub-section 5 of section 30, or section 41 of the Army Act.
– I read them all out when we were dealing with clause 48, and drew attention to them. They all deal with fraud in regard to pay, which may not be discovered until after the man has returned and been discharged. The offences were committed outside Australia. I gave an instance in connexion with a pay officer.
– My attention must have been distracted at the time. These, I understand, are really not ‘mili-. tary but civil offences?
– The clause looked so suspicious on the face of it that I am glad of the explanation.
.- The clause seems to be the very reverse of the one to which I took exception a little while ago, with this difference, that here the time is not limited, whereas in the other case it was.
– These are specific exceptions to the limitation in clause 48.
– That convinces me that I was right in objecting to that limitation. I am suspicious enough to believe that that limitation was deliberately put in to settle some cases, and that this clause has had to be included to protect the Government in case frauds committed previously are discovered, hereafter. ‘I am also a little suspicious about applying the Army Act, and frpm this on, wherever the words “ the Army Act “ appear, I shall endeavour to induce the Committee to leave them out. In fact. I shall call for a division on each occasion. We may find out after a short-lived triumph for having saved Australia from the imposition of the Army Act, that the Minister has let us in for it by allowing certain clauses to be passed through honorable senators being in ignorance of what they were doing. I do not say that- the Minister would be guilty of not being frank with the Committee, but he might inadvertently miss some provision which might take from us that which we have already done.
– Our soldiers fought under’ the Army. Act; and as there is a possibility of our discovering frauds of this character, we ought to have the power to punish the offenders.
– I realize that our men have fought under the Army Act, and I would be pleased to move. to insert a clause in this Bill to provide that Australian soldiers should never again, inside or outsideAustralia, fight under it. Then it would be incumbent upon the Minister to provide an adequate Defence Act.
– I am curious to know why the offence of mutiny is included in this clause. I cannot see why a charge of mutiny should be held hanging over the heads of men for an indefinite number of years.
– Mutinies have occurred on transports at intermediate ports of call, where men have organized in open force and deserted, thus avoiding going to the war. These men may not yet have returned to Australia, but when they do it might be desirable to have the power to punish them. It is certainly not possible to punish such an act of mutiny at the time. It may not be possible to do it until some time after the general body of the troops have returned from the war.
– I am satisfied with the Minister’s explanation of the other part of the clause, but I protest against the charge of mutiny. being held indefinitely over the heads of troops, and accordingly I move -
That the word “ mutiny,” line3, be left out.
– I will let the matter go on the voices.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 51 -
Section 108 of the principal Act is amended -
by omitting sub-sections 2 and 3 and inserting in their stead the following sub-sections : - “(3) for the punishment of offences against this Act, or the Regulations, or the Army Act, or the Naval Discipline Act, commanding officers shall have all the powers conferred by the Army Act and the Naval Discipline Act with reference to offences against those Acts. respectively, subject to such modifications and adaptations as are prescribed, which may include provision for the punishment of reduction in rank, dismissal, or discharge for offences committed by members of the Citizen Forces When not on war service :.. .
Section proposed to be amended -
– I move -
That after the words “ Naval Discipline Act” (first occurring) in the proposed new subsection (3) the words “committed on war service” be inserted.
The purpose of this amendment is to harmonize the clause with the decision of the Committee not to apply the Army Act in peace time. . I shall explain the principal features of the. clause. The word “ discharge “ in paragraph a is applicable to soldiers of the Military Faroes. The insertion in the proposed new” subsection 2 of the words “ for any offence triable by court martial “ is . intended to make it clear that the man cannot claim trial by court martial should his discharge be necessary for a reason other than an offence, for instance, reduction in establishment. The Army Act does not confer on any officer the power of reducing or discharging. These powers have in the past been exercised in relation to the Citizen Force under the Defence. Act. A proviso contains the power to award a minor punishment during the currency of any continuous training the offender is undergoing.
– It is . hard to follow the Minister intelligently.
Military Officers as Members of Parliament : Statement by Senator Pearce.
Question (by -Senator E. D. Millen) proposed -
That the Senate do now adjourn.
.- During the debate on the Defence Bill I moved an amendment to provide that members of Parliament who accepted positions in the Australian Army should immediately be placed on the unattached list, and the Minister for Defence (Senator Pearce) said that such a course was unprecedented. I have had the opportunity of looking up Hansard of the 26th May, 1904, on page 1594, on which I find reference to a regulation, having precisely the same effect, which was passed by the military authorities. There was an officer in the House at the time who had unearthed something in the nature of a military scandal at Queenscliff, and had made use of his position to criticise an officer. 1 think ‘ it was in connexion with an officer getting away with coal belonging to the men, and this member who was also an officer exposed it. A regulation was immediately passed which placed him on the seconded list because of doing his duty in Parliament, and he had difficulty- in getting back on to the active list when later on he lost his seat. I endeavoured to insert a similar provision, because the seconded and unattached lists are practically the same. In looking up, Hansard I find that Sena-‘ tor Pearce at that time made a very powerful defence of the regulation, which was attacked by Senator Neild and others. The present Minister for Defence said -
I think, with other honorable senators, that there are very good reasons for this regulation being included. As Senator Fraser hae said, ?very one ought to obey .the dictates of good taste in matters of this kind, but we know there may come times, and there may be men. in either House who may not be governed by the dictates of good taste, but who may make statements on the floor of Parliament seriously impugning the ability’ of the General Officer Commanding, and the efficiency of the Forces. While we are considering the position of a member of Parliament, in what position do we place the General Officer Commanding, who is responsible for our troops and whose reputation is at stake 1 A member of Parliament is practically one of the employers of the General Officer Commanding, and. he may make charges in a privileged chamber, of which the door is shut to the officer whose ability he impugns. The member of Parliament may make statements criticising tha ability of a general in the discharge of his duties, but the month of the general will be tied, except that the Minister may ask him to reply. Even then, in what position do we place the Commandant? He has to take .upon himself the task of replying to parliamentary . attacks. Is it advisable’ that the General Officer Commanding tho Military Forces should be called upon to reply to an attack made by officers under his command in a privileged chamber? I agree that such attacks may be justifiable in certain circumstances. They are of service to the community if they are made on legitimate lines, that is to say, if the member who makes them does bo as the result of knowledge that he acquires, in some other way, than by reason of hia position as an officer. But if hia position as an officer gives him access to documents, and to information to which he would not have access were he not an officer, and as a member of Parliament he uses that information
-Colonel Neild. - He ought certainly to have his commission cancelled if he reveals official secrets.
– I suppose, that this regulation is to prevent the cancellation of a commission in such circumstances. It certainly leaves an officer in a freer position.
Senator Fraser. There would be a nice row if the commission of an officer who was alao a member of Parliament were cancelled.
– I should imagine that a man who would make such statements would kick up a nice row if his commission were cancelled,, and he would probably do it in the privileged chamber. I think that if an officer is seconded when he is elected to Parliament ho is free to come here and use his military knowledge as applied to military questions and to give the country the benefit of it. But there is this difference, that he does not use his privileges as an officer to obtain information that is not given to him for public use. In that way it is a very necessary regulation.
I invite honorable senators to read the speech on the page of Hansard to which I have referred, as it is the most powerful argument I could adduce in support of the amendment I moved in Committee.
– Order !’ . The honorable senator must not discuss in the Senate what occurred in Committee.
– In characterizing my amendment - -
– The honorable senator is disobeying my-ruling. He must not discuss what occurred in Committee.
– On those arguments I think the Minister should he prepared to recommit the clause.
– I think he should recommit it.
– Order!’ I again direct Senator Elliott’s attention to the fact that he is not allowed to discuss any matter which is at present on the notice-paper.
Question resolved in the affirmative.
Senate adjourned at 11.7 p.m.
Cite as: Australia, Senate, Debates, 11 May 1921, viewed 22 October 2017, <http://historichansard.net/senate/1921/19210511_senate_8_95/>.