21st Parliament · 1st Session
The PRESIDENT (Senator the Hon. A. M. McMulIin) took the chair at 11
A.m., and read prayers.
– Is the Minister for National Development aware that the present position regarding supplies of galvanized iron to Tasmania is causing chaos? Is it a fact that the allocation of such iron to Tasmania is 4 per cent, of the output of John Lysaght (Australia) Proprietary Limited? Is the Minister aware also that about 1,7S0 tons of this quota for the past twelve months remains undelivered? As the shortage is reaching alarming proportions, will the Minister take whatever action is necessary to speed up the delivery of Tasmania’s quota of galvanized iron?
– Change the Government!
– I know that supplies of galvanized iron, are not sufficient to meet requirements, although I have not the details of the Tasmanian problem at my finger tips. I shall make inquiries, and if I can do anything to expedite the delivery of supplies to Tasmania, I shall do so. Although galvanized iron is in short supply, there is no need to change the Government, as Senator Ashley has suggested, because the plant at Port Kembla has been expanded, and we confidently expect that, by the end of this year, sufficient supplies of galvanized iron will be available to meet all Australian requirements, and leave a surplus for export.
– Will you, Mr. President, inform the Senate whether it is a fact that a presentation was made to you, as President of the Senate, by representatives of the United States Air Force while they were visiting Canberra on Operation Handclasp ? If so, will the gift be suitably acknowledged, and will you make a statement to the Senate regarding the gift?
– During the visit to Canberra this week of the 374th Troop Carrier Wing (Heavy), I received from the commander, Colonel A. N. Williams, a book entitled The Greatest Airlift, by Captain A. G. Thompson. This very fine book describes the story of the many and complex airlift operations carried out by members of the United States Air Force in Korea. The book is very well illustrated, and is a monument to both the author and the gallant members of the Korean airlift units. I shall suitably acknowledge the receipt of the book, which is at present in my office and available to all honorable senators. I take this opportunity of congratulating the commander and all members of the United States Air Force engaged in Operation Handclasp on their historic and magnificent flight from Japan. I thank them, also, for the opportunity they provided at Canberra for honorable senators to inspect the aircraft of their formation. I also wish to record, on behalf of honorable senators, our sense of the very great value to both our countries which accrues from goodwill missions such as this one.
– In view of the extra service given to honorable senators by the publication of the daily Hansard, will you, Mr. President, express on behalf of myself, and all other honorable senators, our appreciation to the members of the Hansard staff for their courtesy, efficiency and charity in this matter?
– I will be very pleased to do as the honorable senator has asked. I know the amount of work that is involved in bringing out a daily Ilansard and it is to the credit of Mr. Campbell, as the Principal Parliamentary Reporter, and of the Hansard staff generally, that they have produced the daily Hansard in the excellent form in which it is produced, and with the ease with which, so far as honorable senators are concerned, it is apparently being produced. I shall be glad to convey Senator Tangney’s expressions to Mr. Campbell.
– In view of the answer of the Minister for National Development to’ a previous question by Senator Guy relative to galvanized iron, I should like to ask the Minister what is the position in regard to ordinary steel and iron for water supplies in Western Australia? The Government of “Western Australia has found great difficulty in the past in obtaining sufficient supplies of steel plate to go ahead with its comprehensive water supply scheme, and if sufficient supplies are now available, I should like to know whether they are available to Western Australia.
– Honorable senators might have seen in this morning’s press a summary of a report on manufacturing industries made by the Division of Industrial Development of the Department of National Development. That report surveys the manufacturing scene, and I commend it to the attention of honorable senators. One of the points made in the survey is the all-round shortage of steel in Australia. The report points out that, at the present time, despite the substantial expansion of local steel works over recent years, it is necessary to bring into Australia from overseas one ton in every five tons of steel products used in this country. I shall ascertain the position of steel plate and other steel products mentioned by Senator Scott, and drop him a note to let him know what information I get that might help him.
– Has the attention of the Minister for Shipping and Transport been directed to a press statement to the effect that Australia will lose its British beef market unless better processing and quicker handling methods are used? In view of the importance to Australia of maintaining and extending its export trade, will the Minister ascertain what can be done to ensure faster ships and quicker handling of meat at ports of departure and arrival?
– That matter is under active consideration at present, and representatives of the Australian Meat Board are conferring with the processors.
Everything is being done to see that as much meat as possible is obtained from a particular port so as to save time in the journey from Australia, and in the turn-round of ships. This matter is even more urgent at this time because the demand in the United Kingdom for chilled beef has increased considerably and a limited time is allowed for the transport of that type of beef. I assure Senator Wedgwood that it is hoped to meet the position.
– I wish to ask the Minister for National Development a question relating to the Commonwealth and State Housing Agreement. The Minister will remember that about two weeks ago I asked whether it was a fact that Commonwealth moneys were being used by the State Government of Western Australia to acquire land compulsorily under the Commonwealth and State Housing Agreement. The Minister was then unable to say whether that was a fact. I ask the Minister now, in view of the continuing practice of the State Government of Western Australia in acquiring private land compulsorily at prices far below its true value, whether Commonwealth moneys are being used for this purpose.
– I remember the honorable senator asking the question a couple of weeks ago. I remember, also, that I made inquiries and received information on the matter from my department. I am sorry to say that I did not convey the information to the honorable senator. I did not realize that this was a question which I had not answered. The purport of the information I received was that the Western Australian Government is compulsorily acquiring land at its valuation rather than at the current market price. The Australian Government thoroughly disapproves of that practice. It is a procedure with which this Government does not care to be associated. However, I decided to take no action on the matter because the Commonwealth and State Housing Agreement as it applies to Western Australia will expire within the next few months. I made, a notation on the papers to ask my department to bring the matter to my notice should there be any negotiations for the renewal of that agreement, and if it should be renewed, I sincerely hope it will not be in anything like its existing form.
– I desire to ask a question of the Minister for National Development. Does the Minister remember that I also asked a couple of questions about two weeks ago? I should like to know the reason for the delay in answering those questions, and whether I am wrong in thinking that the answers have been purposely delayed for political purposes ?
– Is the honorable senator referring to question No. 4 on the notice-paper ?
– I am referring to Nos. 4 and 6.
– There is a reply to question No. 4.
– It is not before its time.
– I address a question without notice to the Minister representing the Minister for Health. My question has reference to the medical and health benefits scheme, and to recent reports that some people are being misled by literature or proposals emanating from societies which are not approved, which literature does not clearly show that the societies have not the approval of the Government and .that its members, therefore, are not eligible for Government health and medical benefits. I ask the’ Minister whether the act gives power to prescribe by regulation that societies, at least those registered in the Australian Capital Territory, should state conspicuously in all proposals for insurance for such benefits that they are not approved societies. If that power exists, has it been exercised ? If it has not been exercised, will the Minister consider the. matter with a view to deciding whether it would be desirable to exercise the power ?
– I am aware that there are some societies which have not received the approval of the Australian Government, and that the persons who belong to those societies are not entitled to receive Government payments. This matter is within the jurisdiction of my colleague, the Minister for Health. I. will ensure that the question is brought to his notice so that he may give me a considered statement in reply. I will then convey that reply to the Senate.
– On the 11th May, Senator Paltridge asked me the following question : -
What expenditure was incurred by the Australian Government in connexion with the recent trade mission to South-East Asia. Can the Minister provide an analysis of the total expenditure under broad cost heads? I ask, further, whether the Australian Government has means of recording any increase in the volume of trade gained as a result of that mission’s visit to South-East Asia?
I have now obtained, through the Department of Commerce and Agriculture, details of the costs of the mission. They are as follows: -
Total government expenditure was £1,691. of which £1,187 was incurred under the special vote of £1,250 provided for the mission. This covered the cost of providing a government official as leader and a departmental officer to assist in managing the mission as well as official entertainment and publicity. The balance of government expenditure was incurred under general administration expenses. The advertising and entertainment costs known to have been incurred by the business firms who participated totalled over £4,000, while their travelling and accommodation expenses far exceeded this figure. Our estimate of travelling and accommodation expenses of nongovernmental mission members is £14,500.
As I previously indicated, there are no really accurate means of assessing the full results of the mission. One important aspect of the trade mission approach is that it build:? up an awareness in overseas markets of Australia’s growing potentialities as a supplier of a wide range of manufactures. Therefore, the full effect of its work will not be apparent in the short run. On the other hand, no accurate assessment can be made of the business written by individual firms, as the members cannot be expected to disclose details of their private contracts. It is known, however, that, most members wrote business in the many centres visited, that some have again revisited the area and that several intend to follow up their work by revisiting the area in about twelve months time.
The Department of Commerce and Agriculture is of course watching our trade figures, but honorable senators will realize that it will be difficult to identify shipments resulting solely from the mission’s activities. There will, also probably be a considerable time lag before some business reaches fruition.
– I refer again to the recent question about housing in Western Australia that I directed to the Minister for National Development. Will he inform the Senate -whether it can be assumed from his answer to my previous question that the Western Australian Government is, in fact, utilizing Commonwealth money for the purpose of compulsory acquisition of land?
– The honorable senator’s question is not an easy one to answer. The moneys referred to are loan moneys, being moneys lent by the Australian Government to the Western Australian Government. However, after having been lent they can be said to be moneys that belong to the State government. Those moneys are lent to the State governments out of the 20 per cent, of loan raisings which the Australian Government is entitled to retain for its own purposes. Although the moneys are loan moneys, they belong to the Western Australian Government rather than to the Australian Government, but the Australian Government is in such a position that it need not lend to the Western Australian Government unless it wishes to do so.
– Has the attention of the Minister for National Development been directed to allegations in today’s Sydney press that the Government is investigating claims by Australian manufacturers that a British price ring is operating to undercut Australian manufacturers? Did he notice that the allegations refer particularly to heavy electrical switch gear? Can he offer any comment to the Senate about this matter ?
– I have read in several Sydney newspapers the reports to which the honorable senator has referred. As to whether there is a governmental inquiry proceeding, I do not know. I have no information about that matter. All I know at this stage is the part of this subject that concerns the department which I administer. As I told the Senate a day or two ago, the Government recently invited tenders for electrical equipment for the Snowy Mountains Authority and received 25 tenders from eleven countries. Nine of those tenders were from British manufacturers of electrical equipment, and were for exactly the same amount. That fact indicated clearly a trade agreement or some arrangement among them. I told the Senate also that, in transactions such as this, I feel quite competent to administer the affairs of my own department and to buy on the best market. The Snowy Mountains Authority is in a strong position in that it invites tenders on a world-wide basis, and if there is a “ ring “ or group price, the authority is not bound to accept the price of any particular country but can take advantage of world-wide competition. That is what happened on this occasion, and although we disliked going outside the British market the purchase was made from Belgium because the best tender came from that country. If the time comes when such circumstances do not obtain, the Government will deal with the British offers in a business-like way, and I am quite confident that the best results will be achieved.
– Has the Minister for National Development read a statement attributed ‘to an ex-officer of the Snowy Mountains Authority to the effect that the estimated cost of the total scheme is £425,000,000? Is that estimate anywhere near the departmental estimate? With regard to the hydro-electric unit of the scheme which was recently brought into operation, can the Minister inform the Senate how the financial arrangements with the States that are using this electricity supply, measure up to meeting the total cost of the output?
– The estimate of £425,000,000 is correct. That estimate was prepared by the Snowy Mountains Authority late in 1953 and it has been examined and verified by the States. Following that estimate to its logical conclusion, there is no doubt that, although the costs of the Snowy Mountains scheme have risen, as have all other costs including those of thermal power, in the final analysis power from the Snowy Mountains scheme will still become available at a much lower price than that at which thermal power could be generated.
The financial arrangements with the States have not yet been completed, but £ hope that will be done in the near future - particularly after the Victorian elections when I shall be able to deal with a Cabinet Minister in that State. There is a great deal of misconception in the minds of many people about the tremendous amount of money involved in the Snowy Mountains scheme. The right way to consider the matter is that electric power is a necessity, and if it is not obtained from the Snowy Mountains, thermal power will have to be generated elsewhere. A comparison of the economics of the two sources of electricity supply clearly show that hydro-electric power is cheaper than thermal power. The cost of £425,000,000 for the Snowy Mountains scheme will be spread over the years, as and when power is needed. If we did not spend the money on the Snowy scheme, we should spend it somewhere else. As well as getting cheap power from the Snowy scheme, we are also getting the even greater advantage of tremendous quantities of water for irrigation.
– Can the Minister state the approximate amount of money that has been spent to date, and also indicate whether the whole of it has been provided from revenue?
– I believe that the total expenditure to the “30th June this year will be £54,600,000, all of which will have been obtained from revenue and will be interest-bearing. Interest will be charged against the States, and the Commonwealth will earn interest on that investment.
– Can the Minister for National Development inform me whether the Bureau of Mineral Resources has made a survey, using aircraft equipped with scintillometers, in the north-western area of Western Australia for the purpose of locating uranium deposits? If such a survey has been made, have any uranium deposits been located? Can the Minister also say what action the Government has taken to develop deposits that have been discovered ?
– I can answer the first part of the question with great confidence. We are making aerial surveys of the northern part of Western Australia. Indeed, when I was in Derby recently, I had the opportunity to fly about in an aircraft and watch the professional officers actually engaged on the job. Generally speaking, the purpose of the surveys is to provide basic information in order to encourage private prospectors to come in and do the subsequent work of developing the uranium deposits. It is not our function to start drilling or mining for uranium. All that we do is to provide the foundation, to give information concerning the indications, and to provide professional data so that others can come and take up the work from where we finish. I believe that the work in Western Australia did give evidence of what the scientists call anomalies, or indications that there are uranium-bearing ores in the area surveyed.
asked the Minister representing the Minister for Commerce and Agriculture, upon notice -
– The Minister for Commerce and Agriculture has supplied the following answers: -
Debate resumed from the 4th May (vide page 185), on motion by Senator SEWARD -
That Statutory Rules 1955, No. 4, Sulphuric Acid Bounty Regulations, made under the Sulphuric Acid Bounty Act 1954, be disallowed.
– As the subject-matter of this motion has been fully debated, and the Government and its supporters have expressed reasons for opposing the motion, I suggest that a vote be now taken.
– in reply - I desire to comment on one or two statements that have been made during the debate. The Minister for Trade and Customs (Senator O’Sullivan), in the course of his speech; said that it was a matter for the Commonwealth Grants Commission rather than for the Senate to decide. As I pointed out in my earlier speech, these regulations apply not only to Western
Australia, but also to other States, particularly Victoria and New South Wales. Those two States do not come under the purview of the Commonwealth Grants Commission and so I repeat that this is a matter for consideration by the Senate, not by the Commonwealth Grants Commission.
Another argument advanced by the Minister was that the motion should be defeated because I had not suggested an alternative. In my twenty years’ experience of parliamentary life this is the first time I have been told that a private member should draw up regulations. On a number of occasions, I have supported motions for the disallowance of regulations, or have moved for their disallowance, but never previously has it been suggested that the mover of such a motion should bring forward alternative regulations to replace those objected to. That is the function of the Government, and then it is for the Parliament to study the regulations brought forward by the Government. Should the Parliament disagree with a regulation it can reject the regulation. But that does not relieve the Government of the duty of bringing forward an alternative regulation that will meet with the approval of the Parliament.
The Minister also said that if we were to debate this matter it would be equivalent to the Senate rehearing the case put before the Tariff Board. That is not so. The Tariff Board is an expert body appointed by the Parliament to conduct inquiries into various matters. The board submits its reports to the Parliament, which is then in a position to give more intelligent consideration to the matters contained in the report, or in legislation arising from the Tariff Board’s recommendations. The Parliament does not have to base its legislation on the recommendations that the Tariff Board brings forward. The Tariff Board stated in its report that it advanced certain recommendations, and added that it had done so because the members of the board could see no alternative. As I have pointed out previously the Government, with its plentiful supply of legal advice, might have been able to find an alternative if the Parliament had considered the relevant regulation unacceptable.
As a matter of fact, the Government would have been bound to promulgate another regulation or find other means of making a payment to the manufacturers because it is bound to recoup the manufacturers for the added cost of using pyrites. The use of pyrites has been advocated in the national interest. In the negotiations between the manufacturers and the Government, the manufacturers were told that if they used pyrites instead of brimstone, they would be recouped for the additional cost. Therefore, if the regulation had proved unacceptable to the Parliament, the Government would have been bound to provide a different method of recouping the manufacturers for the added cost.
During the debate, the AttorneyGeneral (Senator Spicer) stated that this matter should have been debated when it was before the Senate, and that we should have amended the principal act. That is incorrect. When the measure was brought down, it was stated that the amount of bounty would be prescribed by regulation. How could honorable senators conduct a debate on the fairness or otherwise of the bounty when they did not have the proposed amount before them for consideration? It was available only when the regulation was issued. When the amending bill was before the Senate, the report of the Tariff Board was not available. The bill was rushed through on the concluding day of the sessional period when honorable senators did not have the advantage of having the Tariff Board’s report before them. As the regulation stipulating the amount of bounty was not issued until January of this year, it was impossible for honorable senators to consider it when the legislation was before them. The statement has also been made that if we disallowed the regulation, we would be taking away from the manufacturers something in the way of compensation, but that is not SO, because they have not received anything yet. In Western Australia, sulphuric acid has been manufactured from pyrites for seven years, and the manufacturers have never received a bounty. If the Senate had disallowed the regulation, it would have been disallowing only the particular recompense provided in the regulation.
I have dealt with the few objections to my proposal that were raised during the debate, and I wish to refer now to a suggestion I made to which the Minister did not pay any attention. It relates to the supervising committee, which has been charged with the duty of having other plants converted to use pyrites, but the committee is not carrying out its duties. The agreement with the Government was that the plants concerned were to be converted to use 65 per cent, of pyrites by 1956. As I stated during the debate, the manufacturers in Western Australia are using practically 50 per cent, of pyrites, but over the whole of Australia, the manufacturers are using only an average of 24 per cent.. The previous year they used 29 per cent. The Tariff Board stated in its report that, last year, more brimstone was used than at any time since 1938.
I remind’ the Senate that the bounty is payable so that we shall not find ourselves bereft of superphosphate in the event of a war. If the committee to which I have referred does not wake up and ensure that the companies change over to the use of pyrites, Australia might find itself again in the position of having to ration superphosphate, as it did in World War II., with serious effects upon production. I am not criticizing the personnel of the committee, which is composed of highly paid public servants, but they lack knowledge of the amount of superphosphate that is required by primary producers, the productivity of the plants and the demand generally for superphosphate. The manufacturers say they are prepared to change over provided they are not required to use more than an extra 10 per cent, of pyrites, but that would be a restrictive influence on the production of pyrites.
The Attorney-General has stated that I implied that certain manufacturers along the eastern Australian seaboard would make huge profits. I did not imply anything of the sort. I stated that the Tariff Board reported that certain manufacturers would make profits or would be able to sell at a lower rate than their less fortunate competitors. That definite statement was contained in the report of the Tariff Board. Those are the only matters to which I wish to refer. In view of the fact that I have not received any support, I will not force a division, but will accept a vote on the voices.
Question resolved in the negative.
Debate resumed from 24th May (vide page 399) on motion by Senator
That the bill be now read a second time.
.- The Courts-Martial Appeals Bill is supported by the Opposition. The bill provides for the setting up of a new body which will be called the Courts-Martial Appeal Tribunal to which a person convicted by a courtmartial will be able, with the leave of the tribunal, to appeal against a conviction. That is the whole purpose of the bill, and the Opposition believes that the right of appeal is long overdue. Before I turn to the details of the measure, I remind honorable senators that the bill is based on legislation that was introduced in Great Britain in 1951. That disturbs me a little because, although the bill before the Senate is not entirely the same as the United Kingdom legislation, it is, to all intents and purposes, as close to the United Kingdom measure as the Australian Government, within its constitutional powers, could make it. That is where the first margin for error is established. It cannot be claimed with certainty that, because the legislation relating to courts-martial suits the particular problem of the armed forces of Great Britain, it will also suit the armed forces of Australia. The provision contained in the bill is long overdue, and close thought should have been given to the problem long ago. All governments that have been in office in Australia in the past must accept responsibility for not having given members of the armed forces legal rights as close as possible to those enjoyed by civilians. Apparently, a measure similar to this one suits the armed forces of the United Kingdom, but I am not so sure that it will fully meet the situations that arise in the Australian forces.
Under the provisions of the bill, a soldier will have the right of appeal to another tribunal and be heard orally. That is a big advance, and the serviceman concerned will know that he has some prospect of having justice applied to his case, but the fact remains that the appeal tribunal can only accept or reject the decision of the court-martial. I know that the tribunal will be composed of legal men of the highest calibre, men of honour and justice, whose capacity and training is not in question. There does not lie in the hands of this appeal tribunal the right to vary a sentence imposed on a soldier. It must either dismiss the appeal and say that the soldier is guilty and the penalty confirmed, or uphold the appeal and say that the soldier is not guilty and that the penalty is remitted. But surely there must be many cases in which a sentence imposed by a courtmartial is not the right sentence, even though the guilt of the soldier is established beyond doubt? The Government should look at this aspect of the legislation. It is not too late to bring down an amendment to widen the scone of the appeal tribunal. What i« the function of an appeal court under civil law? Often its function is to alter the sentence.
– And sometimes to increase it.
– Yes. There is no doubt that a civil appeal court is able to increase a sentence, leave it as it stands, or reduce it. The function of a civil anneal court is not only to decide the guilt or innocence of the appellant, but also, if the guilt is established, to consider the sentence that has been imposed. It might he that the appeal court will consider that the offence is not so grave as suggested in the lower court, or mitigating circumstances might be brought forward in evidence that reduce the gravity of the appellant’s conduct. The appeal tribunal provided for in this legislation should have power to find, if it so wishes, that the offence of the person who is found guilty by the court-martial, and whose guilt is established again on appeal, is not so bad as the court-martial considered it to be when imposing its sentence. The appeal tribunal, under this bill, cannot reduce a penalty. Its power is confined to determining the guilt or innocence of the appellant and this restriction of the scope of its function is fundamentally unsound and weak. I am not being unduly critical when I say that all governments in Australia, down the years, have fallen into this error of slavishly following British legislation. This was apparent in the Patents Bill 1955 and the Trade Marks Bill 1955 which were debated in this chamber not long ago. This practice is not right. Surely we have men enough with capacity to look at our own problems, and particularly in this instance the problems of the Australian serviceman, a nd to work out what we want to do in Aubt.ra.lia to give the serviceman justice.
– Does the honorable member think that we should avoid British legislation just because it- is British ?
– On the contrary. It should be the basis of our legislation, but that is a different matter from just adopting the legislation of the United Kingdom Parliament.
– Suppose it is good. Why depart from it?
– It may be excellent, but I am pointing out how it has been followed, and I think that the Minister might agree with me.
– Not yet.
– He will agree, but doubtfully. The point is that this legislation should be examined according to a wider concept than has been applied to it. That concept should have complete and absolute application to our own problems. Senator George Rankin is a soldier of no mean valour on and off the field, and he will agree that the conditions in the Australian Army tire not identical with those in the British Army. No one would expect the conditions to be the same. Nevertheless, in this bill, the Government has followed exactly the pattern of the United Kingdom legislation. If we want to give a. soldier an appeal to a tribunal, let us take this opportunity to do so completely and cleanly, and have in our legis lation something that will last for the next twenty years or until events so alter that it will have to be examined again. I feel a fundamental sense, of injustice about this bill when I see that the scope of the appeals tribunal is limited in the manner that I have shown. The law on courts-martial has come a long way since the first courts-martial were formed in. 1642 in the reign of Charles I. There were then listed no fewer than 43 offences for which the death sentence could be applied. That number has been considerably reduced, and the whole atmosphere in which, let me call him the delinquent soldier, is handled has changed completely. Of course, it has changed for the better. Rough justice was administered under the old system of courtsmartial, but in. many cases it was very rough justice.
Members of Parliament have been forced to battle for soldiers who were in their opinion treated most unjustly by courts-martial. I remember when I first became a member of this Senate, one of my colleagues, Senator Amour, took up the case of a soldier who had been dealt with before a court-martial. Only Senator Amour’s tenacious application to his task enabled him even to get access to the file on the matter. There had been a governmental or ministerial inquiry in which it was established, quite beyond doubt, that the man concerned had been unjustly treated. A direction was issued that all references to this aspect of the soldier’s service should be deleted from his papers so that his record would be clean. When Senator Amour got access to the soldier’s service record, he found that the deletion took the form of two painfully thin diagonal red lines drawn from corner to corner across the page on which the court-martial’s findings had been recorded. The eyes of any one who picked up the service record would be immediately drawn to these thin red lines, and thus the object of the deletion that had been directed was defeated. The purpose was to expunge all reference to the court-martial from the soldier’s service record, but the manner in which this was done merely drew attention to it. This was a case of gross injustice, and through the tenacity of Senator Amour, the offending pages were taken out of this soldier’s file. Indeed, the injustice was acknowledged by a monetary payment, though it was not much, to the soldier by the Government. It was admitted that there had been an injustice and the Government went a little way along the road to right it.
According to the Minister, this bill attempts, so far as possible, to give a soldier all civilian rights under the law. That is why my first point is important. It does not go all the way, as it might do. We in Australia have a different approach to military training than that which obtains in the United Kingdom. Military training is not so much a part of our life here, and the personality of our serving men may be a little different. We have at the moment a form of compulsory training that is not nearly so severe as the compulsory . training for the services of the United Kingdom. Here, young men go into the services for compulsory training for only short periods. If any of those young men, for psychiatric reasons or for any of the thousand and’ one other reasons that might apply, do not settle down to the life of a soldier and make mistakes that lead them to offend against army rules, they should be dealt with in a civilian fashion, as much as that is possible. The harshness of the old days of courts-martial no longer applies, and no longer achieves the purpose that it perhaps achieved in former times. For instance, the punishment to be meted out to a permanent soldier and to a young compulsory trainee for the same military offence need not necessarily be the same. The circumstances surrounding the two offending soldiers may be completely different. A hardened permanent soldier with twenty years in the service who commits an army crime would know the punishment that fits his offence, but a young soldier undergoing compulsory training for a few months who committed the same crime should have his case looked at very closely to ensure that justice will be done.
In the examples that I have given justice would not necessarily mean that for the same crime the same punishment should be inflicted. There must be legal opportunity to examine each man’s situation closely and to assess his offence cor- rectly so that justice will not only be done but also will seem to be done. I shall not discuss the details of the constitution of this tribunal. The Opposition applauds the efforts that are being made to give civilian justice to the members of our armed forces. The old way of conducting courts-martial may generally have provided that rough justice which has been spoken of, but in some cases I am sure that it did not provide justice at all. The accused soldier had little opportunity to present his case properly when facing his accuser. When the soldier appealed, he was not seen. Papers were read and decisions made, and in due course the soldier was told the result of his appeal. This measure provides that a highly qualified legal practitioner shall act as presiding officer of the appeals tribunal, and there is no doubt that justice will now be done. The constitution of this tribunal is a great improvement in our military law.
There is one aspect of this legislation which does not meet with the approval of the Opposition. I refer to the fact that the appeals tribunal will not have the power to vary a sentence, except in extraordinary and unusual circumstances which would not apply in even 1 per cent, of the cases reviewed. I do not want the Minister to lay too much emphasis on this point in his reply, because, as I have said, it would not apply except in very extraordinary circumstances.
– That is quite clearly set out in section 24.
– I have said that the power can be used only in unusual circumstances, but I think the honorable senator will be the first to agree that there should be no restriction of the power to alter sentences. This tribunal will be a competent legal body, consisting of highly qualified men, and if the Government has sufficient confidence to take this important step along the right road, then it should make the whole journey and give all possible power to the tribunal.
– Does not the measure give that power?
– Only in very unusual circumstances. I know that it is practically impossible for the Opposition to secure amendments to the legislation at this late stage, but I hope that the Government will consider this matter very carefully and widen that power. If that is done, then this measure, which is approved by the Opposition, will be doubly welcome.
– Although I support this bill, I wish to make some comments on the broad question of military law. The bill contains an excellent provision for appeals from courts-martial, and the appeals tribunal which is envisaged will evidently consist of a select body of legal gentlemen. I hope that when the Government selects this body it will pay particular attention to the background of service in the armed forces of prospective members of the tribunal. It is well known that many legal practitioners and judges have served with great distinction in the services in the last two world wars.
– And some served with great dishonour.
– That may be so, but I am not applying my mind to that matter at present. The Government would be doing a great service to members of our armed forces if it paid particular attention to this point. It is most important that members of this proposed tribunal should be conversant with general conditions of service, particularly service on an active front. In welcoming this brilliant new change in our military law, I offer that suggestion to the Government.
As the Minister rightly pointed out in his second-reading speech, the danger at present is that the soldier is not aware of the general review which always takes place of any conviction and sentence by a court-martial. It is a sort of paper review of the finding of the court-martial by the higher officers in the various forces, followed by a review by the Judge Advocate-General or a member of his staff. The soldier, unfortunately, is not aware of those facts, and as far as he i3 personally concerned there is no review, and the finding and sentence of the courtmartial represent the end of the matter.
I served in the last war, and during the course of my service I came across an odd court-martial - and “ odd “ is the word to describe these would-be-legal hearings. Whether the court-martial took place at Victoria Barracks in Sydney, or in the field, the actual proceedings were generally extremely hurried, but the procedure before the sitting of the courtmartial was completely unhurried. Some very good serving soldiers would wait many weeks for a court-martial to hear their cases. There was no provision for men, some of whom might be completely guiltless, to be given anything equivalent to the bail which is available to a civilian charged with a civilian offence. Consequently, during his long period of waiting, wherever he might be detained, the charged person was marched up and down in detention barracks doing a sort of servitude appropriate to a convicted person. In those circumstances, the unfortunate soldier was without hope from the time he was charged. He had that feeling in his mind at his court-martial, and he knew nothing about any remedy which might be applied in case of a miscarriage of justice. Therefore, when I welcome this legislation, I invite the attention of the Senate to the fact that a lot more’ should still be done to improve our military law regarding offences. I pay tribute to the Government for what it has done, but I invite attention to what is still to be done. On this aspect I strike a completely new note, because I am quite sincere in saying that w.e, as legislators, should endeavour to tidy up the present untidy situation. I recall reading an advertisement in an Adelaide newspaper about ten years ago inviting all persons who might be able to do so to give evidence before a tribunal which had been constituted by the then Minister who, I believe, was Mr. Forde, to inquire into the matter of courts-martial and detention barracks. In other words, they were inviting witnesses to come forward and give evidence at a public inquiry.
When I applied my mind to this matter, I searched for the report of the court of inquiry, because a most eminent gentleman had been appointed to be its chairman. That was Sir Geoffrey Reed of the Supreme Court Bench of South Australia. I was rather astounded to be told by the Minister for the Army (Mr.
Francis) that the report of that committee was not available to me. I ask, honorable senators to remember that the report was made as the result of a public inquiry, which for more than a year investigated this important matter. Yet, I have been told by high authority that it is not available to me. After the Minister for the Army told me that, [ made some research for myself. T refer honorable senators to page 2260 of volume 187 of Hansard. It is there reported that on the 4th July, 1946, Mr. Forde, the then Minister for the Army, said -
On the 20th June the honorable member for Griffith (Mr. Conelan) asked whether the report of the Board of Inquiry set tip to examine the conduct of courts-martial and detention barracks had been received.
I understand that the board has completed the final draft of the court-martial section of its report, which is now being typed. The final draft of the section of the report dealing with detention barracks will be completed within a few days, and the typing of that section will then be undertaken. I understand that the report is a lengthy one and that typing, editing and assembling will take some weeks, before which the report cannot be made available.
Honorable senators will perceive that the clear inference to be drawn from that statement is that after the typing, editing and so on had been done, the report would be made available. However, I have been informed that the then Minister for the Army forbade the publication of the report, and I know that the present Minister for the Army is following the practice of the former Minister and has also forbidden its publication. Consequently, I have been forced to take devious ways in order to find out something about it, as it is most germane to the subject under discussion. I searched the Sydney Morning Herald files and discovered a report on the matter in a copy of that newspaper dated the 2nd August, 1945. The scope pf the inquiry was apparently very wide, and is of enormous importance to the matters now before the Senate. Senator Armstrong has said that he is interested in this matter, and, indeed, I am sure that all honorable senators are most interested.
The Sydney Morning Herald of the 2nd: August, 1945, reported -
The committee to investigate the Army court-martial and defence system was announced to-night by the Minister for the Army, Mr. Forde.
Tile chairman is Mr. Justice G. S. Reed of the Supreme Court of South Australia, and thu members are the Chaplain-General the Rev. T. C. Rentoul, and Mr. K. A. Bidstrup, barrister and solicitor of the Supreme Court of Victoria.
Mr. Forde said thu first meeting would probably be held within the next few days.
The committee would be asked to inquireinto and report in detail on the system for the enforcement of. military law and its administration. Particular reference would bo paid to the procedure for dealing summarily with offences; the conduct of court-martial reviews and petitions on findings and sentences; the punishment of youthful and first offenders; the places where sentences should he served and the manner of carrying out sentences; and the administration of military detention barracks. In its early stages, it was- not proposed that the proceedings of the committee would take place in public. It was expected, however, that during the investigations opportunity would be given to the public to place complaints before the committee. A public announcement would be made on the address to which complaints should be forwarded.
Mr. Forde then detailed the experience of the men who had been selected to serve on the committee. The report continued -
Mr. Justice Reed recently inquired into matters relating to the detention barracks at Grovely, Queensland. He served in the 1914-18 war.
Chaplain-General Benton] served three and a half years with the First A.I.F. in Egypt, England, and France. He is past President of the” Methodist Conference arid is chairman of the conference of chaplains-general.
Mr. Bidstrup was nominated by Sir Gilbert Dvett, Federal President of the B.S.S. and A.I.L.A. He is a barrister and solicitor of the Supreme Court of Victoria. He enlisted in July, 1940. and served in the Middle East, where he rose from a gunner to captain of his unit. He has teen a troop commander and regimental adjutant, and has had court-martial experience as a prosecuting officer, defending officer and judge advocate.
That, if I may say so, was a remarkably well-chosen committee. Therefore, it seems to be quite amazing that its report should not be available to this upper chamber of the Australian Parliament. The committee was appointed in August, 1945, and there was a reference made in June, 1946, to its report. As Senator
Armstrong pointed out, there are a number of matters which are of great importance in addition to the simple matter of the appellate tribunal. Perhaps, only a fraction of the cases dealt with in the Army will find their way to that tribunal. Honorable senators might have to apply their minds to the matters of parole, first offenders and youthful offenders ; but this most important report, which would be of great interest to the Senate, is hidden away in some military vault.
I believe that the Senate should consider whether, after ten years, the time is now appropriate when this report should see the light of day, because of the importance of the matters which may be disclosed in it. My speech on this matter is necessarily rather incomplete, because I have not had the benefit of checking my ideas with those of the very distinguished gentlemen so well versed in the three aspects of military administration, the judicial, the chaplaincy and the adjutant’s side. Therefore, I ask the Minister for Trade and Customs (Senator O’Sullivan) to read through this report. It has been very well printed, possibly at the Government Printing Office, but it is not available for the use of honorable senators. Surely, it is high time that the present Administration should reverse its opinion that senators should not see this report.
The Minister, in his second-reading speech, said that the introduction of this measure would mark an important step forward in regard to the administration of military justice in Australia. It is pertinent to ask him why we should take this step forward when there is so much of more importance to be done with our existing administration. It should be remembered that hundreds, possibly thousands, of courts-martial took place in Australia each year during the last few years of World War II., and possibly the very immensity of the matter caused Mr, Forde and other Ministers to set up this committee to which I have referred. The committee sat for more than a year, and then submitted a long printed report of possibly more than 100 pages. We must also remember that military service is now changing. Practically every young man in this country is subject to military law for at least six months of his life. He spends three months in continuous national service training, and then a total of another three months in the next two years. These are young, impressionable fellows. The Senate should examine the law with regard to the appellate tribunal, but the important law to an accused is that to which he is subject when he is first picked up and charged at the lower court stage. I plead with the Minister to use his best efforts to make available to honorable senators who are interested in this subject the report which I have been seeking. The result of this bill will be not just one step forward, but a number of steps forward.
I agree> with Senator Armstrong that, possibly, conditions in Australia are different from those in the United Kingdom. Only United Kingdom reports were quoted in the second-reading speech of the Minister. I support the bill, and I am grateful to the Government for the action that it has taken, but I have tried to show that there is yet a long way to go before justice will appear to be done to the young fellow in the Army who may have made a mistake.
– I join with my deputy leader, Senator Armstrong, in supporting the bill as far as it goes. It would be far more acceptable to the various branches of the defence forces if one or two amendments were made. I admit there are difficulties, but to ensure smooth working and greater competence of the proposed court, and satisfaction to the appellant, who, because of some action has been sentenced by a court-martial, the bill should be given further consideration. As Senator Laught has just said, the real importance of the law begins at the place where the rank-and-file service man is first picked up.
There are two principal reasons why this bill should be reconsidered and they both relate to happenings of active service whether it be on the field of battle, in a naval engagement, or in the air. In every other country, the penalty for desertion in the face of the enemy is death. As honorable senators know, if that sentence were imposed by a court-martial, or by any other body on a member of the Australian forces, it would have to be referred to the Australian. Government before it could be carried out.
In the Minister’s second-reading speech, when dealing with the constitution of the court as provided in Part II. of the bill, lie stated that the court would consist of - experienced lawyers drawn from the ranks of present and former justices and judges of federal courts and the Supreme Courts of the States and Territories, barristers and solicitors of not less than 5 years’ standing and other persons who have had legal experience making them specially suitable for appointment. The president, as well as the deputy president of the tribunal, must be a present or former justice or judge, or a Queen’s Counsel.
I do not dispute that those are desirable qualifications for members of the appellate tribunal, but such a body would not give general satisfaction to all branches of the service. The advance of science since the days when I was a soldier in World War I. has made conditions on the field of battle vastly different, and it is difficult to say how long a court would take to make up its mind about happenings similar to those in the 1914-18 war.
It is no exaggeration to say that soldiers in. the Australian Army, and in fact every army on the field of battle during the encounters in France and Belgium, in the winter of 1916, and to a lesser extent on the Peninsula - men who were inexperienced in war, but as honest and loyal as any citizen in this country - were completely spellbound and unable to move in the heat of the conflict. They had no desire to funk, but they were physically overcome with fear, i plead guilty to having been possessed of perhaps more than the average fear in such circumstances, and I know that that was the experience of many of my comrades in the Australian Army. I have no quarrel with the appointment to the appeal tribunal of learned gentlemen such as those mentioned by the Minister, but what would give greater satisfaction to an appellant and his dependants and relatives than the knowledge that on the bench there would be at least one man who had experienced the conditions of actual warfare. From my own experience, people who attempt to judge the conduct of servicemen without themselves having endured battle conditions, are devoid of the fundamental ex- perience essential to make the proposed tribunal acceptable.
In the days of World War I. the expression was often heard, “ We don’t want any so-and-so brass hats around “. That was an understandable sentiment when comparatively minor offences were involved such as being absent without leave for a day, or stealing a tin of jam. The offender knew that his punishment would probably be seven days confinement to barracks or to camp, or extra duty such as cleaning latrines for two or three days. But, when it comes to a. serious crime in which an element of doubt exists, such as desertion or cowardice in the face of the enemy, honorable senators will appreciate that the proposed appeal tribunal should include a high-ranking officer, if possible of the service to which the offender belongs. I am confident that that could be arranged. I make an earnest appeal for such a provision to be included in the bill.
It is a tradition of British and Australian justice that every man should be given a fair trial. In World War I. many people in many countries of the world in which the Australian Army was on service frequently heard the expression “Fair go, Digger”. The constitution of the appeal tribunal as proposed in the bill could conceivably cause an appellant to consider that he was not being given a “fair go”. On the other hand, the court may consist entirely of legally qualified gentlemen. The Parliament has no assurance on that point. From my point of view, this is the vital feature of the bill. I have no objection to the other clauses of the measure, but I emphasize that the only persons who are really qualified to judge servicemen accused of cowardice or desertion in the face of the enemy are those who have had actual experience of active service conditions. In my opinion, the Government should have given deeper consideration to this matter when the bill was being drafted.
Provision is to be made for the tribunal to refer important questions of law to the High Court. That sounds very well, but as a layman and an exDigger, I know that if I were charged with cowardice or desertion I should feel a lot happier if men. such as Senator Mattner, Senator George Rankin and Senator Wordsworth, all of whom have had experience of active service conditions, were sitting in front of me when I walked in with my cap off to face the charges. I claim to he an average kind of man, and I confess that there were many times during my short period as a soldier when, but for the grace of Providence, I might have been faced with one of those serious charges. Although F did my best, I sometimes looked for the way out. In the Australian Army there have been cases of soldiers being charged with desertion or cowardice in the face of the enemy. Those are awful words. I do not think that they would be properly applicable to one-quarter of 1 per cent, of the total number of Australian service personnel. Yet, this bill provides that such charges, if made, shall be heard by people who have had no active service experience. In my opinion, that is a serious defect. I know there are difficulties involved, but I again appeal to the Minister to see whether something cannot be done about this matter.
The Minister for Defence (Sir Philip McBride), in his second-reading speech in the House of Representatives, referred to the constitutional difficulties which were encountered in framing this legislation, and he pointed out the differences between the position in Australia and that in England. In the United Kingdom, a new civilian court, known as the Courts-Martial Appeal Court, was set up by legislation passed in 1951. That is a civilian court, and is constituted primarily by the judges of the Court of Criminal Appeal. No one has a higher regard for the need for discipline in armed forces than I have, but I cannot see why a poor devil, who has enlisted to serve his country and who is stricken by fear and unable to go either forward or backward, should be branded as a criminal. I hope that we shall never follow that line of thought.
The Minister for Defence also stated that, in time of war, it might be necessary for the English court to sit in more than one division, and for other judges’ to be appointed. He went on to say -
Provision was made to meet these contingencies. Creation of a civilian court did not present the British authorities with any constitutional problem. In Australia, on the other hand, we were faced by the constitutional requirement that judges exercising the judicial power of the Commonwealth must hold life tenure of office.
I am very pleased that the Government was alive to that possibility, and I am also pleased that the difficulty has been, to an extent, overcome. The Minister continued -
However, the kind of body which was needed was one of a flexible character, able to function satisfactorily under all conditions in time of war as well as in time of peace.
I suppose that, while we have permanent forces for the protection of this country, we must also have tribunals such as this, but we must make certain that they function satisfactorily, both in time of war and in peace-time. This contentious second-reading speech, if I may so term it without being considered disorderly, continued -
Under active service conditions, a fairly large complement of members might at times be required, whereas in normal conditions a relatively few members would suffice. In these circumstances, a civilian court, all of whose members would, in accordance with the Constitution, have to be appointed for life, waa not an appropriate choice.
Although the appointment of such a court is not contemplated, the legislation makes provisions for the establishment of a court which may consist of persons who have had no experience of active service conditions. I appeal to the Minister and the Government to do something to remedy what I consider to be an unfortunate omission in the framing of the legislation.
I commend other members of this Parliament, particularly certain members of the House of Representatives, for the speeches they have made concerning this bill. That of the honorable member for Gippsland (Mr. Bowden) was one of the most humane speeches that I have heard. Because of his experience on military tribunals, the honorable member was able to place on record the nature of the difficulties involved in a much better way than I am able to do it. From my own experience of warfare, I believe that, in the majority of cases, where servicemen are charged with cowardice or desertion in the face of the enemy, investigation of the charges should be made by their commanding officers who would know the circumstances in which the resistance of the men was alleged to have given out. They might appreciate the fact that, in the circumstances, it was a wonder that so many of the soldiers came through without such charges having to be preferred against them. I do not think that men who have enlisted to defend those who are near and dear to them and break down should be accused of cowardice because of their behaviour while actively participating in battles for the protection of their country. As a member of a family with a military record as good as that of any member of this Parliament, I resent bitterly the suggestion that any significant percentage of the Australian fighting forces would, at any time, be guilty of cowardice or desertion. I say, in conclusion, “ Fair go, Aussie ! “
– I support the bill, and, indeed, I welcome it. I consider its four main provisions to be excellent. The bill provides first for the appointment of a new body to hear appeals from courtsmartial, and secondly that the appeal tribunal shall be composed of experienced lawyers. As to the second provision, I should have preferred a completely civil court. However, I understand that the reason for not providing for a civil court is that there are some constitutional difficulties. The third provision is that appeals shall be heard orally, in public, and the fourth sets out that points of law arising before the tribunal shall be referred to the High Court. I advocate hearings in a civil court because martial law is a completely exceptional thing in the British Empire, and has always been so regarded. Back in the days of the Stuarts, one of the rallying cries of parliamentarians was “ There shall be no martial law in time of peace “. In the revolution of 16S9, it was distinctly laid down that there should not be a standing army in time of peace. The army was regarded as an exceptional institution; but we have moved a great deal since those days. It will be rememberel that there wa3 a time when Australia’s permanent army consisted of garrison artillery. Today, throughout the whole of the British Commonwealth, the law provides that if is the duty of every man to serve his country, and that rule is often put into practice. Because of that, we wish to bridge the differences between martial law and civil law. Martial law is necessary in order to maintain discipline. I think this bill goes as far as we can go at the moment without risking the danger of slackening discipline. It is very unfortunate that there have been tragic cases of mistakes by courts-martial. By way of illustration, I shall tell a true story to show the difference between the attitude adopted by military tribunals and civil tribunals. The incident, I shall relate is somewhat frivolous, but, I shall not relate it to introduce an atmosphere of levity into this chamber. Thirty-nine years ago, one of the best and most famous of Australian fighting battalions - 1 refer- to the 55th battalion - was in camp by the Suez Canal. Nearby, at Ferry Post, the Australian Army Service Corps had a depot. A requisition came to that gallant soldier, the late Colonel McConaghy, for a fatigue force. Naturally, he sent the best platoon of the battalion. I happened to be a member of it. During the course of the platoon’s arduous operations, which consisted of lifting a number of tins of jam, one private, whom I shall call Private “ X “ discovered a broken box. He removed some of the tins, and decided to put a tin in the haversack of every man in the platoon. When he had done so, six tins remained, and those he put in his own haversack. Shortly afterwards, the captain of the Army Service Corps ordered us to fall in. He called us over and the roll was called. Each man whs asked, “ ls that your haversack ? “ and each gave his reply. We were then marched down to appear before the colonel and he was told the whole story. Each man answered an emphatic “ No “, when asked if he had put a tin of jam in his haversack. That was true, because only Private “ X “ had touched any of the tins. The situation might not have arisen had Private “ X “ not been discovered trying to hide the broken box.
Even so, he might have got away with a minor punishment. The case came up for hearing in some form of summary jurisdiction at the orderly room. The quartermastersergeant, who was a clergyman of irreproachable character, swore that lie had issued a large number of tins of I.X.L. jam. It appears that, if there were any criminal act, it was that of the Army Service Corps officer who had taken out of the haversacks not only the jam from his store, but also jam from the store of the 55th Battalion. The colonel listened patiently to see if any of the men would break away from the traditional answer, “ “We know nothing, sir “. Before he finally adjourned the case, he said, “ I can find only one precedent. It goes back to the time when Joseph’s brethren visited him in Egypt. It is related in the 44th Chapter of Genesis, lt will be remembered that Joseph ordered that the purchase money should be put in every man’s sack, and that in little Benjamin’s sack there should also bp placed the governor’s silver cup “. The colonel went on to say that the circumstances were the same as there was a tin of jam in every haversack. Some of the men certainly knew nothing about the jam in their haversacks. One or two of them were aware that Private “X” had found some jam, but no one had any knowledge of how it got into his haversack. After two hearings, Colonel McConachy said, “ Admonished “. We were then marched out.
– Who got the jam?
– Immediately after that incident, three members of the platoon were promoted to the rank of lance-corporal. I tell that story to illustrate that, technically, the colonel’s “ Admonished “ was equivalent to a verdict of “Guilty”. If the case had been heard before a magistrate, or in a civil court, only one man would have had any case to answer - the man who admitted that he put tins of jam in other men’s haversacks and was caught only when, unfortunately for him, he tried to hide the broken box. My point is that there is necessarily a different attitude in a court-martial from that of a civil court.
The main idea behind a court-martial is that discipline must be maintained. I was told later that Colonel McConachy expressed his private opinion about the matter to the Army Service Corps officer. The story emphasizes that men who were not guilty were admonished and were thus declared guilty. It is for that reason that we should have an appeals court, and, as I have said, it should be a purely civil court.
I do not know whether sufficient inquiry was made on the Australian front before this bill was introduced. I leave that for the Minister to answer. However, I do not think that any wrong was dom in copying the basic principles of the British act. In the United Kingdom there was a series of inquiries which produced a great deal of evidence. In some respects, there is no great difference between conditions in the Australian Army and in the British Army. After World War I., Lord Darling, a distinguished justice, made an extensive inquiry into courts-martial. Before legislation was brought in, there was an inquiry into the naval and British practice by two distinguished judges - Judges Lewis and Pilcher - and, on the basis of their findings, the British act was laid down. I understand that we have had an inquiry here, but it would be unnecessary to have a commission to inquire into matters of law. Therefore, I see no wrong in the Government following the practice in the United Kingdom.
Sitting suspended from 12.U5 to 2.30 p.m.
– I wish to refer briefly to another matter that was raised in the House of Representatives, one that is worthy of the Senate’s attention. The bill provides for an appeal from a court-martial, but there is no appeal from the decision of a medical board. On ordinary grounds, one would think that that was quite proper, since a decision upon a man’s medical condition is properly one for a physician and not for a lawyer, but reference has been made to a rather distressing case in which a man was declared to be insane. That declaration could not have been made in civil life merely on the word of a medical man. Committal to a lunatic asylum, or any action connected with insanity, involves a legal process, and is a matter for determination by a magistrate, a judge or a specified authority. The Government might well bear in mind the need for allowing some kind of appeal from a medical board. After all, it is simply a question of the fallibility of human judgment and, however well disposed and competent doctors may be, they can make mistakes. A mistake which could leave a man seriously affected in his civil life is one that should be corrected. The law on matters of that sort is laid down very ably in Halsbury’s Laws of England, where it is stated -
Expert opinion does not relieve a court of the responsibility of making an independent judgment.
My main motive in speaking was to emphasize that this bill stresses the supremacy of civil law over military law. Possibly I gave a wrong impression when I referred earlier to martial rather than military law. I might have conveyed the impression that the two are identical, whereas that is not the case. Martial law is the law of military forces over a civilian population, but military law is a law over military personnel. The civil law of the land should be supreme over both of them, and the important point, when service in the forces is something to which numbers of men and women may have to submit, is to preserve their right to a fair trial by the law of the land and under the proper jurisdiction. Under the terms of this bill, the Government is attempting to give to men serving in the forces such civil liberty as is compatible with military discipline, and, on that ground, I support the bill.
– I believe that the bill before the Senate is welcomed by honorable senators on both sides of the chamber, and particularly by those who have had the opportunity and privilege of serving in the armed forces, a privilege which I did not enjoy myself. The Government has seen the necessity for a tribunal such as that which is now contemplated in the bill, and which was referred to from his own extensive experience by Senator Critchley, among others. Some of the comments that I shall make might more properly have been made at the committee stage of the bill, but I propose to deal with several clauses in speaking to the second-reading debate. First, I wish to make a brief comment on clause 23 of the bill where there appears to me to be a contradiction as to what shall be the determining factor upon which a tribunal shall act in arriving at its decision. The relevant portion of clause 23 under Division 2.- Determination of Appeals states -
Where, upon the hearing of an appeal against a conviction by a court-martial, the Tribunal considers -
that the finding of the court-martial -
is unreasonable, or cannot be supported, having regard to the evidence; or
involves a wrong decision of a question of law ; or
that, on any ground, there was a miscarriage of justice, the Tribunal shall, subject to this Division, allow the appeal.
It would appear that the determining factor for the tribunal is whether there has been a miscarriageof justice. Clause 23 (2.) of the bill provides - (2.) Notwithstanding that the Tribunal is of the opinion that an appeal might otherwise be decided in favour of the appellant, the Tribunal may refuse to allow the appeal if it considers that no substantial miscarriage of justice has occurred.
It will be noted that the first sub-clause makes it mandatory upon the tribunal to apply the test of a miscarriage of justice, and to allow the appeal if it considers that such has occurred. Sub-clause (2.) on the other hand introduces a new burden. This is the burden of a substantial miscarriage of justice. A discretion is vested in the tribunal to dismiss the appeal if it is of opinion that no substantial miscarriage of justice has occurred. I draw the attention of the Senate to an apparent contradiction. It is perhaps more apparent than real, and I ask the Minister whether he would care to comment on the operation of the clause when he is replying to the debate.
– That is a usual provision in a criminal anneal.
– It is usual, but it appears in strong juxtaposition here where the two tests required to be applied appear to be in a major degree quite different. My second point deals with the question of references to the High Court on questions of law. These are provided for in Part V. of the bill. The marginal note to clause 51 reads -
Tribunal may be requested to refer a question of law to the High Court.
Clause 52 reads - (I.) Upon receipt by the Tribunal of a request under the last preceding section, the Tribunal shall state, in a case signed by the member who presided at the hearing of the appeal, or, if that member has ceased to be a member or is, for any reason unable to sign the case, by another member who sat on the hearing, the question of law and the circumstancesupon which it arose and shall transmit to the Attorney-General -
The burden then shifts to the AttorneyGeneral. Sub-clause (2.) of the same clause reads - (2.) The Attorney-General after considering a case stated by the Tribunal and transmitted to him under the last preceding sub-section, shall-
Obviously the Attorney-General in the final analysis is the person who decides whether there shall be a reference to the High Court on a point of law, and the principle he must apply is that a case should be, of exceptional public importance, and that it is desirable in the public interest that the question should be referred to the High Court. I draw the analogy that proceedings under courtmartial procedure and appeals from the tribunal proposed in this bill are essentially in the nature of criminal proceedings and appeals from a. criminal jurisdiction. As the Minister said in his second-reading speech, this bill, with variations to provide for Australian constitutional requirements and limitations, virtually reproduces the parallel English legislation.Apparently clause 52 is taken from the English criminal statutory law or common law and obviously picks up the practice on appeals from courts of criminal jurisdiction in England to the House of Lords. Perhaps the principles that are involved apply there, but the point is should they apply here if they are not the operative principles that apply on appeals from courts of criminal jurisdiction in Australia to the High Court?
This situation indicates one of the dangers that can arise where legislation is chosen from another country and applied in detail in this country, with all the implications of the principles that lie behind it in that other country. To determine whether there is any substantial variation between the principles that apply in Australia in deciding whether matters of a criminal nature should go on appeal to the High Court, and the principles that apply in England in criminal appeals, one has to look at some of the decisions of the High Court itself. I shall give some brief references to cases in which the High Court of Australia has set down the principles that it will apply in this branch of its jurisdiction. Under the Commonwealth Judiciary Act, in the broadest terms, the High Court of Australia has appellate jurisdiction in criminal matters. This jurisdiction has not been exercised on a great number of occasions, but it has been invoked quite frequently over the years since federation. A recent case in which this power was exercised is Shaw v. The Queen reported in Commonwealth Law Reports for 1952. It emerges from that case first that the points involved were questions not of fact but of law and, secondly, that when the High Court allowed the appeal, it made brief reference to the principles that it applied ingranting special leave to appeal. This was an appeal in a criminal case and the report in the Australian Digest reads -
Some evidence having been given in the course of the Crown case that a prisoner who was being tried on a charge of murdering a woman who had been killed by manual strangulation had referred, in the presence of officers of the police, to the deceased as having been “ throttled “, the prisoner when called on his own behalf admitted that he had used the expression. When asked why he had used that word he said, “ 1 heard the police talking about it and I took it she had been throttled “ ; and he added that, apart from what the police had said, he had, when he used the word, no knowledge of the cause of the death. It was suggested for the Crown that the prisoner’s use of the word “ throttled “ - at a time at which there had been no investigation of the cause of death - showed guilty knowledge; and application was made to the presiding judge for leave to recall police witnesses in order to show that there had been no discussion which would have indicated to the prisoner that the deceased had been throttled. The judge gave leave; and the witnesses were recalled and gave evidence after the close of the case for the defence. The prisoner was convicted of murder. Held, that the re-opening of the Crown case was not justified; the judge had wrongly exercised his discretion, and the convictio’n should be set aside and a new trial ordered. Circumstances in which the High Court will grant special leave to appeal in criminal matters under Sec. 35 (])(&) of the Judiciary Act 1003-1950 was considered.
T mention the facts of that case so that honorable senators will see that the matters involved there were points of law. The High Court applied, in broad terms, the principles set out in the case of Eather v. The King to which there is a brief reference in the Commonwealth Law Reports of 1915. The principle on which the High Court operates is that there will be special circumstances particular to each case and that each ease must be considered on its merits. In considering this aspect of the bill, it is of tremendous importance to remember that in any jurisdiction an accused must have available to him all things that properly and rightly should be available to him to defend himself, whether it is a defence on the merits in point of fact, or a defence in point of law. The compelling provision should not be that which is recited in. clause 52 of the bill - that in the opinion of the Attorney-General the question of law stated in the case is of exceptional public importance and that it is desirable in the public interest that the case should be referred to the High Court.
The compelling point is not such a provision as that, but that the matter is of exceptional private importance. Matters of a criminal nature can go to the High Court on appeal only by special leave, and those provisions in the Judiciary Act which exist to prevent the High Court, which is a court of high jurisdiction and has other grave responsibilities, from being cluttered up with a multitude of criminal appeals of a minor nature. Apparently, in no case has the High Court been prepared to adopt a general principle in such cases as this, but where there are special and compelling circumstances in a particular case, the court has been prepared to sit and hear the appeal. This bill sets out two general principles that must be applied by the Attorney-General before he transmits a case stated on law to the High Court of Australia. Even if the desirability of those principles is allowed, it seems to me that there should be included also a general principle as to the desirability of protecting the interests of the appellant.
The general import and contents of this legislation are excellent, but if we go to the length of creating a tribunal, and go beyond that and allow a reference to the High Court of Australia on a point of law arising in the matter, then I feel that the intent of the legislation and the spirit behind its introduction will not be completely followed if at that stage the interest of the appellant appears to be submerged, and to be made inferior to other general considerations.
Again I ask the Minister to request the Government to consider the suggestions that I have made. Then our legislation, which has been moulded on the English legislation will pick up the spirit behind the principle of criminal appeal jurisdiction in the High Court of Australia. This legislation should include not only the words of British legislation but also its principles which, to some extent, are not the same in our jurisdiction, and are not appropriate in this country. With those observations I give the bill my enthusiastic support, and I make those suggestions to the people who have a personal and intimate knowledge, from their experience of the operations of courts-martial.
– That is not very complimentary.
– Of course, one can be a member of a court-martial without being the accused. I am referring to persons who have a long, personal and direct association with courts-martial, and who will bring to the consideration of the bill the knowledge that they have gained by experience. This bill will give a new charter of liberty and justice to members of the armed forces, who will look to this new system of appeal tribunals, properly constituted, to afford them that complete and absolute justice which is so important.
– This bill presents for our consideration a system of law which has been adopted within the internal organization of the services on the fundamental principle that good discipline, which is essential to effectiveness in the services, must be based upon a proper sense of justice. Any one with experience of courts-martial in the services can only counterbalance that frustrating experience, with any satisfaction to himself, by the fundamental reflection that the soldier does obtain a sense of justice from the knowledge that there is a constituted authority within the service itself to which he may apply for redress, sometimes against real and sometimes against supposed irregularities. It is a curious situation that courts-martial are constituted solely of members of the services, and that, within my experience, those members are always from the commissioned ranks. I speak subject to correction now, but it is my recollection that, whatever the offence, a decision of a court-martial is recorded in accordance with the view of a simple majority of the court. When one reflects on the seriousness of some of the offences with which a court-martial may deal, one sees at once that that is a departure from the civil safeguard of unanimity required of a civil jury, although the decision of a court-martial may involve deprivation of liberty, or even death for serious offences. The mere mention of these matters reminds one that these pseudo courts, these courts-martial, dispense with the jury principle and constitute officers of the services as the judges of fact and of culpability as well as of law. This bill represents an endeavour to extend to the services a branch of the civil law for the protection of a soldier charged with a service offence. But the bill by no means purports to extend to the soldier the complete system of civil law. If it did, of course, it would conflict with the provisions of our Constitution. The framers of the Constitution were wise enough to foresee that in this great Commonwealth of Australia we would require, as a cornerstone of British freedom, an independent court of justice, and the judicial power of the Commonwealth is committed by the Constitution to the High Court and such other courts as this Parliament may create, or such other courts as it may invest with federal jurisdiction; but it has been decided by the High Court that courts-martial are not part of the judicial power. The present Chief Justice of the High Court, Mr. Justice Dixon, in explaining the apparent exception of courts-martial from the ambit of judicial power, made some pregnant comments in the case of The King v. Cox in 1945, which is reported in volume 71 of the Commonwealth Law Reports at page 23 -
In the ease of the armed forces, an apparent exception is admitted and the administration of military justice by courts-martial is considered constitutional’.’ The exception is not real. To ensure that discipline is just, tribunals acting judicially ave essential to the organisation of an army or navy or air force. But they do not form part of th« judicial system administering the law of the land.
Therefore, as was explained in the Minister’s second-reading speech, a tribunal was selected as the reviewer of the decisions of courts-martial, rather than, as in England where there is no similar constitutional provision, an actual court to hear appeals from courts-martial.
I now address bit remarks to the appeal tribunal which will he established under this measure, and I do so in the light of the remarks made by Senator Critchley. The honorable senator said that hp viewed with some apprehension the establishment of an anneal tribunal which is to be constituted exclusively of members r>f the legal profession, because he considered that; such a body should have persons with battle experience among its members. I suggest that the honorable senator might; further consider that matter after a study of clause 20 of the bill. There, it is indicated that the appeal to be provided for in this bill is available only to a convicted; soldier. A soldier who is acquitted by a court-martial cannot be brought before this appeal tribunal. Therefore, it is quite clear that the fundamental function of the tribunal is to give a further opportunity of redress to soldiers who have been convicted by a military court. Moreover, I remind honorable senators that such military courts, or courts-martial, are made up of officers who have the experience that Senator Critchley deems to be essential. That is, battle experience in many cases, and service experience in all cases.
This bill will provide that a convicted soldier may appeal to the new tribunal on the ground that the finding of the court-martial which convicted him is unreasonable, cannot be supported having regard to the evidence, involves a wrong decision on a question of law or involves a miscarriage of justice. Consequently, the function of the appeal tribunal is a judicial function, although the tribunal has been given the veneer of an administration function so that there will be no conflict with the Constitution. Nevertheless, honorable senators will see that the tribunal will have a judicial reviewing function, and I suggest therefore that it is proper that the members of such a tribunal should be drawn from the legal profession, and should be judges or legal practitioners.
– J hope that I did not convey the impression that I considered it wrong to have a tribunal, some of the members of which are legal practitioners. According to the measure, all the members of the tribunal could be high-ranking military officers with battle experience, and I do not want the legal profession to be completely excluded.
– I understood Senator Critchley to say that at least some member of the tribunal should have had battle experience.
– That is correct.
– The appeal envisaged in the measure is available only to a convicted person. Under the legislation of most of the Australian States, and under the English Criminal Appeals Act 1907, a right is given not only to a convicted person to appeal against an erroneous decision of a civil court, but in certain, circumstances - and in some cases subject to leave - a right is also given to the Crown itself to appeal against an acquittal. There is no such provision in this measure in the case of a soldier who has been acquitted by a court-martial. The bill provides that before an appellant may pursue his remedy under this legislation, he should have lodged a petition so that the Judge-Advocate General may review the case beforehand. It has been my experience that in some cases the Judge-Advocate General has acquitted persons who have been convicted by courts-martial in cases where, in my opinion, the acquittal was quite unjustified. In saying that, I am not speaking without experience, because in. the cases that I mention the accused person was defended by myself. Therefore, I believe that it is not right that these cases should be allowed to go to the J udgeAdvocate General, because he reviews the files in private and may come to his own conclusion that an acquittal is justified.
After this measure has been passed, an acquittal by a court-martial will stand, and. if it is an erroneous acquittal then the whole matter is unfortunate from the viewpoint of the discipline of the Army. We must not fall into the error of thinking that the whole of the military law is designed to create loop-holes through which people who deserve punishment and correction are able to escape. It is most important that we should maintain a system of the just administration of the rule of law, and if a man is guilty of committing an offence he must be punished for it. Therefore, the continued, availability of a secret review by a JudgeAdvocate General gives rise to the possibility of acquittals of convicted persons even though they need punishment or correction.
– I dealt specifically with cases of desertion and cowardice which, the honorable senator will agree, are most difficult cases to deal with.
– I hoped, by putting these matters before the honorable senator, that he would get some satisfaction rather than resentment from them. I have addressed myself to his remarks, because there have been others on this side of the chamber who did not deem them worthy of comment. I have tried to explain the legal basis upon which I considered Senator Critchley’s argument was based, and I trust that upon reflection he will find that a matter of satisfaction. The approach of the appeal tribunal will not be to start completely from the beginning and make a finding on the preliminary facts. It has to entertain an appeal only in certain circumstances, and I envisage that it will proceed upon the material and evidence that were before the courtmartial. It will not form its own opinion as to whether a soldier committed a certain act. It will address itself, in the manner of an appeal court, to whether there was sufficient evidence before the primary court to warrant a conclusion adverse to the soldier, or whether the court-martial applied a rule of law in error. The soldier will not be exposed to the danger of a completely legal tribunal coming to a finding of fact adverse to him and doing him injustice because of its lack of military experience.
The appeal tribunal will not concern itself with the quantum of punishment or the sentence imposed. I tried to find in the bill specific provision that this body shall not review a sentence or punishment, but it is sufficiently clear from clause 24 and following clauses, which deal with the functions of the appeals tribunal in relation to the alteration of a sentence in certain cases, that primarily, it has no jurisdiction to entertain an appeal simply against a sentence. I consider that it should not concern itself with the measure of punishment. The military officers comprising the court-martial are by far the best judges of the measure of punishment, and with their particular psychology in the circumstances, they are much more capable than a legal tribunal of appeal of doing what is designed to evoke from the soldier the best performance or to suppress within him the most prejudicial tendencies.
I cannot find in the bill any power for the tribunal to admit a soldier to bail pending an appeal. If these matters have escaped me I hope that my attention will be directed to them.Some honorable senators feel that if, while an appeal is pending, a soldier were released from discipline or sentence, that release could be used in a manner prejudicial to discipline. However, the bill does not provide that loop-hole of escape. The tribunal is not given the jurisdiction vested in Australian criminal courts of appeal. If it considers that the original conviction was arrived at on inadmissible evidence it has the right to send the case back to the court of first instance for a new trial. In this jurisdiction that would be the court-martial.
– The High Court has the same power after granting special leave from a court of criminal appeal.
– That is so. Since 1907, the court of criminal appeal in England, has had power only to reverse a decision or to allow an appeal but it has no immediate jurisdiction to order a new trial. Within the past two or three years, this deficiency has been the subject of inquiry by a special committee. The report of that committee, whichhas been released within recent months, reveals an important difference of opinion among its professional members. Although the opinions of judges of the Dominions were sought - men who, for more than 40 years have had experience of the right of the Court of Criminal Appeal to order new trials in the Dominions - a majority of this committee recommended that the Court of Criminal Appeal in England should not have the right to order a new trial.
In a recent case in the Supreme Court of the Northern Territory, the accused’s defence was insanity. The presiding judge directed the jury that the measure determining whether the man’s mind was normal or abnormal, for criminal purposes, was, among other things, whether he could distinguish between right and wrong. The judge further said that that meant whether he could distinguish .between right according to law or wrong according to law. The High Court of Australia ruled that that was a fallacious direction because the real criterion was whether the man’s mind was capable of distinguishing between right or wrong as a matter of moral principle. A new trial was then ordered. If that case had come under this act, and the High Court had held that a rule of law had been wrongly applied, the only alternative would have been to acquit the accused and he could never be brought to trial again on that charge. I suppose that it is deliberately intended that the appeal tribunal should not have the right to order a new trial, but there was no explanation of that point in the Minister’s second-reading speech. This is a matter of great importance because it would prevent an offender from escaping proper discipline within the services following the misapplication of a legal rule by a court-martial. It is more important to maintain proper discipline within the armed services than in civilian life.
– The omission of the right to order a new trial is completely new to Australian legal principles.
– I mention these matters in the hope that the Minister will make some explanation of them in his reply. My colleague Senator Laught referred this morning to an experience of courts-martial as recently as 1945 and 1946 when an inquiry was ordered by the Administration of the day, to be conducted by a committee presided over by Mr. Justice Reed. Having regard to the Hansard references which Senator Laught cited, it was obviously contemplated that that report would be, in due course, made available for consideration by the Parliament. Although elections have been lost and won since then, and although a new administration has taken over, Senator Laught’s prescient and most reasonable request to have access to the report apparently has been refused. Why? It was a report deliberately produced as the result of a desire to survey the experience of courts-martial, and a report most relevant for consideration by anybody who wished to pass judgment on the merits or demerits of this hill. Yet, the present Minister for the Army (Mr. Francis) saw fit to refuse perusal of the report by parliamentarians who have to give judgment on this bill. For my part, I hope that the Senate will adjourn its consideration of this measure to enable it, or a committee of honorable senators, to obtain, in the interim, access to the report, because we should have an explanation of the reasons which justified concealment of the document from the Parliament.
The second matter to which I wish to refer in a critical way is of less importance. It arises from the provision? of clause 8 of the bill. In specifying the. qualifications of the president and deputy president of this appeal tribunal, the bill states that he must be a judge of the Supreme Court of a State or of a Territory, or a Queen’s Counsel. The requisite qualification for appointment to the Chief Justiceship of the High Court is practice before the bar for a specified period of years, but never, to my knowledge, has the criterion of judicial appointment been entitlement to the honorific term “ Queen’s Counsel “. We all know that the title is a matter of executive conferment and that it is given, for a variety of reasons, to people such as governors-general and commercial lawyers who collect directorate? and live on them. Such people have a real purpose in acquiring appointment as Queen’s Counsel. I can think of judges of the High Court who have been appointed without being Queen’s Counsel. Mr. Justice Starke comes to mind. I should like to know whether Professor Bailey, for instance, is a Queen’s Counsel. The leader of the bar in my own State of Tasmania is not a Queen’s Counsel, although he was recommended for the Victoria Cross and had a most distinguished practice at the bar over a period of years, not only in Tasmania but also before the High Court. He would be eminently suitable, in any company, for such an appointment. Why this new instance of Canberra snobbery?
– I rise to support this bill, and to present the point of view of a soldier. We have heard quite a lot about the views of learned barristers, and I must admit that the remarks of certain honorable senators rather shook me in some respects, because I could not understand what they were talking about, although I am sure they were right. It may bring a breath of fresh air into this debate if I speak as a soldier, and try to explain how this legislation will affect soldiers.
I certainly believe that this bill is necessary, and that it has not been introduced a minute before it should have been. There is no doubt at all that it is necessary, in peace-time, to have a tribunal to hear appeals from the decisions of courts-martial. There is no reason on earth why any serviceman should not have the right of appeal, and that right should be given to him as quickly as possible in time of peace. I am somewhat doubtful whether the right should be given in time of war, but having examined the bill, I am of the opinion that the right should also be given then. One could visualize that this bill might give rise to a lot of red tape and extra office work, that it might result in delay in administering justice, and also cause much trouble and confusion in the field, so that it would make the job of soldiers fighting the war more difficult to perform. [ am sure, however, that that will not be the case. The mere fact that this procedure has been approved by the British Army, and also by the Canadian Army, b which conditions are more like those in the Australian Army, indicates that we have followed the right course.
– This procedure also applies in the New Zealand Army.
– I do not know about that, but it seems to me that if the armies of Great Britain and Canada have adopted it, we should do so too. Why should our soldiers lack something that has been found to be necessary in other countries? I am quite definite in my approval of this proposal, and I was very pleased, indeed, to hear honorable senators on the other side of the chamber supporting the bill.
I listened to the remarks of Senator Armstrong with great interest, particularly when he raised the question of this tribunal being allowed to reduce sen tences. Again speaking as a soldier, I am inclined to agree with the honorable senator that the provisions of this bill will undoubtedly raise the morale of the Army, in that every soldier will know that he has the right of appeal against a court-martial sentence. I think it would increase morale still further if servicemen knew that their sentences might be reduced should matters favorable to them be revealed when their cases were .being reviewed. I am not a lawyer and know nothing about the law, but I understand that, in civil law, if a man appeals he is liable to have his sentence reduced. He is also, of course, liable to have it increased. I think that the soldier should have the same right. Senator Wright has pointed out very good reasons why that right should not be given. I think, however, that the Minister would do well to consider this matter further.
I do not contend, for a moment, that this bill represents the end of everything, so far as army law is concerned. Indeed, I think that the law as it applies to the Army requires a lot of review. 1 shall have something to say about that later in my speech. If such a review is made in the future, perhaps the giving of power to an appeal tribunal to reduce or increase sentences might be considered then. We must remember that this right of appeal may have a big effect on the forces for some time to come. Anyone, who has served in the Army knows that there are soldiers, commonly referred to as “ bush lawyers “, who think they know all about the law. Perhaps, if it becomes generally known in the Army that every one who is sentenced has the right of appeal, a great many appeals will be made at the beginning, but I think that the appointment of this tribunal will put an end to the making of frivolous appeals.
As a soldier, I agree heartily with Senator Critchley. I admit, as Senator Wright pointed out, that a man is tried all the way up by officers who have military knowledge. They know the conditions under which the man was serving, and therefore, from that point of view, T agree that there is an argument against an officer with active service behind him serving on the tribunal, although I cannot get away from the feeling in my heart that such an officer on that tribunal would help. He might not necessarily be a combatant officer of a unit or a formation. There are plenty of officers serving in the field with legal knowledge. Members of the legal profession go into the field to fight battles just the same as other persons do. I do not see any reason why one of them should not be on the tribunal. In fact, if a war broke out to-morrow, I am sure that Senator Wright would be in it,, and that when one of these tribunals had to be formed, Senator Wright, after having been shot at a bit, would be appointed to the tribunal and would add considerably to its prestige. As I have said, I agree with Senator Critchley on this point. I agree, too, that it would help the morale of men in the Army if they knew that they would get a fair deal. That is one of the big things about it.
I approach with some diffidence the subject of the composition of the tribunal. Here again, I find myself in agreement with Senator Wright. As I see it, there will undoubtedly be many theatres of war - more than in the last war - should another war start. Australian troops have a habit of getting into many theatres of war. Wherever there is a theatre of war there will have to be a tribunal. If we are to have only judges of the High Court on these tribunals, or whatever personnel is laid down in the bill, such as Queen’s Counsellors, the supply may be snort, in which event it may be hard to establish a tribunal. There may not be enough Queen’s Counsellors available, or some of them may be too old to join the services. I do not know much about these things, but that is what struck me about this matter.
From my experience of courts-martial, I would say that a court-martial is the fairest form of trial that one could possibly hope to get. In another place, courts-martial have been attacked, and instances have been cited of men who, it is said, have not received justice. My experience over many years is that a man who is tried by court-martial is, in fact, tried by a jury. That is to say, he is tried by his comrades who serve with him in the field and encounter the same dangers. My experience is that the feelings of the court are always with the accused. There is no doubt about that to my mind. The accused is regarded as a comrade, and the court is favorably disposed towards him. That means that he gets a fair trial. Moreover, the authorities who review his case are also with him 99.99 times out of 100. If there is the slightest discrepancy or mistake, out goes the court-martial, and the man gets off. The reviewing authorities are not dictators and despots who like to convict a man. A man fighting with his comrades in the field is likely to be given the benefit of the doubt. Members of the court know that he must be a good fellow to be fighting in the field at all, and they try to find a loophole for him. That does not mean that it is unnecessary to have a review. I understand the feeling that has been- expressed in another place, and in the street, but not in this chamber; but my experience is that a man w.ho is tried by court-martial is given a very fair trial.
A point, which perhaps is not relevant to the bill, might be mentioned here. I think that the granting of justice in the forces needs to be done more quickly than it is now. Let us look at what happens. A man is charged with an offence. He is brought before his commanding officer. The commanding officer may deal with his case, but if it affects the man’s pay, he has a right to demand trial by a court-martial. Unless he does that, his case is tried by his commanding officer, and the man is either acquitted, or punished on the spot. If a man thinks he might not get a fair deal from his commanding officer, and if his pay is affected, he can, as I have said, demand a court-martial. That is where the trouble starts. If he is in the field in the middle of an operation, matters are held up. If he is in barracks, the position is much the same. There ought to be in the Army some authority just beyond the commanding officer. A man may imagine that his commanding officer has a set on him, or that the company commander dislikes him, and so he may wish to have his case heard by some one just beyond those officers. If we could introduce into the Army a position equivalent to that of a police magistrate in civil life, we would get somewhere. It would do away with probably 80 per cent, of the courts-martial that are now held. That is worth considering. I agree with Senator Laught that there is a lot in our dispensing of justice in the Army that needs altering. It could be done, and it would not be a big task. It could be carried out by the services themselves if encouraged, or ordered, to do so.
I applaud this bill for another reason that has not yet been put forward. I do so because I have been a soldier for many years. I think that this bill will give great confidence to any officer who has to sit on a court-martial, and it certainly will do a great deal to give confidence to an officer who has to confirm a courtmartial finding. Let me strike a personal note here. At one stage in my career I temporarily commanded the Tenth Army. An army is a big formation, and an army commander has the final say in a court-martial. When he signs on the dotted line that is the end of the matter, under present conditions. I was in that unfortunate position on one occasion. A man was tried for murder. The case had been reviewed at various stages, and eventually it reached me. I knew that when I signed the document that would be the end of the case. I did sign, and, as a result, that man was hanged. But [ did not sign at once. I thought about it for a couple of weeks, during which period I hardly slept. It is a tremendous responsibility for a man who has not been trained in legal matters, and the Army does not train its officers in that way. If I had had an appeal tribunal behind me, 1 would have felt happier about that case.
The presence of such an appeal tribunal will have a beneficial effect upon the president and members of every courtmartial. They will be able to adjudicate with more confidence. They will be able to say to themselves, in effect, “ Perhaps I am wrong. I am doubtful about finding this man guilty, and I am not sure that my decision is right, but I shall do what I believe to be correct, and the matter can be referred to an appeal tribunal if the convicted man desires “. I believe that this provision will assist officers greatly in carrying out their duties as members of courts-martial. I have nothing more to add. I entered the debate in the hope that a few comments by an officer who has been through the mill and knows something of these matters might be of interest to the Senate.
.- I propose to comment upon several aspects of the matter under discussion, and to support the view that this bill is necessary. The legal provisions of the bill have been explained adequately to the Senate, but no reference has been made to an aspect of modern warfare which emphasizes the need for this measure. Honorable senators will have read of the experiences of men of various armies who fought in the East and were taken prisoner of war. Many of those men were subjected to the treatment known as “brain washing”. After undergoing that form of mental torture, some men cracked mentally at one stage or another, and thus became traitors to their country in the eyes of the world. We who read about these experiences cannot have any conception of the vile conditions and the cruel treatment to which these men were subjected. None of us can say with certainty that we would not become traitors if we were subjected to the same treatment. When those men have been returned to their countries, they have been charged before courts-martial because they were members of the armed forces. In such circumstances, a courtmartial must find the men guilty on the evidence that is submitted. We have not such an intimate knowledge of these matters in Australia, but many members of the British and United States forces have been tried in such circumstances. They were brought before courts-martial because that was required under the present law, and they suffered the full penalty of military law. A court cif appeal could recognize the facts of the situation, and safeguard the interests of men concerned.
I believe that the members of the appeal tribunal should include some men who will look subjectively at the cases brought before them. I agree with Senator Critchley and Senator Wordsworth that such a subjective outlook could be expected from men who have served in the field. I admit that there should be some legal representation on the tribunal, but as Senator
Wright has said, I do not agree that it is necessary to have a Queen’s Counsel. If we have a subjective influence on the appeal tribunal,, we can expect justice with reason. I should not like to have an appeal tribunal that would make decisions only on legal grounds. I have in mind, in particular, the serious charges of desertion and cowardice. I believe that the appeal tribunal should include some men who understand the psychological effect of warfare on the men who are on trial. I am sure that any man who has served with the Army in the front line would understand the actions of a person charged with cowardice or desertion.
Cowardice is a matter of degree. Some persons are brave in certain circumstances and not so brave in others. Such reactions might be termed positional cowardice. I remember travelling during World War II. in an aeroplane with a number of other soldiers. One of those in the aircraft was a commando captain who had a very distinguished record in jungle warfare. While we were in the air, the commander of the aircraft told us that the undercarriage would not go down and that we would have to make a belly landing. The commando captain, who was outstanding for his bravery on the ground in a commando unit, practially went to pieces when faced with that situation in the air. The experience showed me that cowardice is a matter of degree, and depends to some extent on the circumstances.
I believe that this hill is necessary because of the peculiar circumstances that arise in modern warfare^ and particularly because of the brain washing technique which is applied to prisoners of war. I know that it is possible to have on a tribunal a man with legal training who has also personal knowledge of warfare, but it is also possible to have on a tribunal a legal man who has no personal experience of the conditions under which men serve in action. I have not referred to minor offences because I believe that they should be handled by courts-martial just as they have been in the past. I do not see any need at all for appeals on trivial offences. It seems to me that the purpose of this bill is to deal with greater issues. Theft in the Army can often be described as “ scrounging”; but the provisions of this bill will be important in providing appeals against the decisions of courts-martial in relation to serious matters such as cowardice or desertion in the face of the enemy, or in relation to offences that have been committed after men have been taken prisoner by an enemy. Often under those conditions men’s ideals are destroyed and they are led to commit offences that have to he viewed in the light of the circumstances. Those are the things that count. I am pleased that the Government has seen fit to bring down this bill.
– I wish to speak briefly on this bill. I am strongly in favour of it, but there are some respects in which it could be improved. Young men, not only in Australia, but also throughout the British Commonwealth, are being called upon to give certain periods in their lives to the service of their countries and the defence of freedom. It is absolutely essential that those young men should not have taken away from them on the day they go into the forces to serve their countries a right that they possess as civilians. For that reason, I am strongly in favour of the granting of an appeal against the decisions of courts-martial. I share the strong feeling of one or two other honorable senators that it is equally essential that there should be on the appeal tribunal a man, whether he is associated with the Army, the Navy or the Air Force, who has been through the mill of service conditions. He must be a man who has been through the same things as have the men who will come before the body of which he is a member. Men charged with military crimes during the stress of war should appear before a body that has a member who understands war conditions. Senator Cole spoke of the “brain-washing” of prisoners of war. More than mere propaganda is involved in this practice. Men are starved to make them amenable to “ brain-washing Advantage is taken of their physical condition to such an extent that, in many cases, the commission of an offence is a matter of nutrition.
There should’ be on the appeal body at least one person of senior rank who has served in the field. He should be a man of the type who in World War 1. lay in the mud of Flanders with their men and suffered with them in the trenches on Gallipoli. Under active service conditions lice, burrowed in the clothing of all men, irrespective of rank. All men suffered the same privations through shortage of food and water and other every-day necessaries. Men who have known those conditions know why others crack. They know what malnutrition and the stress and strain of war mean, particularly to younger men. Lads have not the stamina of older men; they are not quite so set in their outlook, and I appeal to the Government to see that there shall be on the appeal tribunal an older man of experience. The initials “ Q.C.” after a man’s name might mean that he is eligible to be called “ quite cold-footed “ just as appropriately as “ Queen’s Counsel “. There are available for service on a tribunal of this character, men such as Sir Edmund Herring, the Chief Justice of Victoria, and Bishop Riley and other chaplains-general who have been through the mill and know what war is. As time goes on, there may not be available legal men who have the knowledge and background of Sir Edmund Herring, and care must be taken that the appeal tribunal is not bereft of an active soldier. Had General Blarney fallen by the wayside, Sir Edmund Herring would have taken over the post of Commander-in-Chief of the Australian Military Forces and he would have filled that job with great success. A man would be proud to have Sir Edmund on any tribunal before which he appeared.
There is need for care in the matter that Senator Armstrong suggested about a power to vary sentence. If the appeal tribunal were given jurisdiction to reduce a sentence it would also have to be given power to increase a sentence. This would be dangerous. At courts-martial, the sentences are imposed by men who know something of the conditions that the accused person has been through and I consider that it would be unwise to permit the appeal tribunal to vary those sentences. The only thing in the bill to which I am keenly opposed is the provision that the appeal tribunal must be comprised wholly of legal men. There should be a member of it who knows conditions of service. I certainly should not be satisfied to go before a tribunal that has as a member a man of the type of Judge Foster - -anti-soldier, peace at any price, and a little bit anti-British. I should not for one second be satisfied to go before him. It is absolutely essential for the discipline of the Army that the men dealt with should have complete confidence in the impartiality of the appeal tribunal and complete confidence that they will get justice. A watch has to be kept on the rats who avoid service in the field ; and they are not only found among other ranks. In the past they have been found in the commissioned ranks, just as anywhere else. They knew better than any general when there was going to be a battle and they always found some means of being absent when it arrived. I agree with Senator Wordsworth that we should avoid setting up any organization that will have room for those people. Lord Allenby was a great soldier and a most successful commanderinchief, but he was never so sure about when a battle would be fought as was one individual in my own regiment. No eel that ever swam the rivers of Victoria was as greasy and as hard to hold as he was when a fight was looming. I am strongly in favour of the bill and I urge the Government to sec that some one, irrespective of the arm of the services to which he belongs, but who has been through the mill and knows the conditions and stresses and strains of active service is a member of the appeal tribunal so that its findings will temper justice with mercy.
– I do not intend to have much to say on this bill because almost everything that has to be said has been said. When the bill was brought down I did not like it because it appeared to me to be another attempt to transfer the control of affairs in the field into civilian hands. I might be quite wrong, of course, but I hold the opinion that most of the world’s troubles for the past 30 years can be traced back to when the statesmen and politicians laid down the terms of peace after World War I. instead of leaving that job to be done by the generals in the field. Since then, this intrusion of civilians into service affairs has gone on. There has been other interference with generals in the field in the absence of which hostilities could have been more successfully carried out. I regard this hill in that light. I thought it was a further instance of the transfer of power from service to civilian hands. My fears could be overcome, and I stress this with all the force at my command, by the inclusion of a high-ranking officer as a member of the appeal tribunal, as has been suggested by Senator Critchley, Senator George Rankin and Senator Wordsworth.
– A man who has had active service.
– Yes. The presence of a high military officer on the appeal tribunal would afford invaluable assistance. Indeed, I do not see how the tribunal will have the spirit that is necessary unless it has as a member a man who knows the conditions under which soldiers servo. I know some eminent Queen’s counsel and barristers who would be eligible for membership of this tribunal, but I have yet to learn that they ever served overseas in a war to gain the experience that is vital to a member of a tribunal that would review the conduct of men under war-like conditions. That experience is needed to enable the tribunal to come to just and reasonable conclusions. I hope that the Government will take that into consideration.
It was suggested that in selecting the legal luminaries for membership of this tribunal the Government should have regard to their military experience. I would suggest the reverse, and say that in selecting a major-general or some other senior officer for one of these positions, the Government should consider his legal experience. Better results would be obtained by adopting that procedure.
I was interested to hear Senator Wordsworth’s speech. He has reminded me of an experience that I had at one time. A private in my command was to be tried by court-martial, and he asked for the services of the commanding officer of the battalion as his defending officer. Of course, the commanding officer was obliged to defend the accused person.
The commanding officer was a legal man. He had been a judge’s associate. I have always been curious to know how that private fared. The legal ability of the commanding officer should have been sufficient to secure an acquittal. As Senator Wordsworth pointed out, there are many men with legal qualifications in the forces. At one time, there was a former judge’s associate from Victoria digging trenches alongside me. We were in the same battalion which, at that time contained half a. dozen legal men. They were all available to defend accused soldiers before courts-martial.
When you, Mr. President, recounted the episode concerning men charged with stealing jam, you recalled to my mind a similar experience that I once had. A fatigue party was sent to transfer some biscuits from the canteen in a ship to
Our mess. When the biscuits were counted it was found that one tin was missing. While the fatigue was at breakfast, we made a search and found the biscuits in a particular man’s locker. Strangely enough, there was a State member of Parliament in the gang of men, and he tried to tell me what I should do about the matter, but when I told him we had found the missing tin he fell silent. That experience suggests to me that perhaps McConachy, who figures in the incident mentioned by Senator Wordsworth, could have exercised more ingenuity. I hope that the Government will consider appointing military men with wide overseas experience to this tribunal, and T give my support to the bill.
– It was not my intention to say anything in regard to this bill, because T support it wholeheartedly, but there are one or two matters which should be emphasized, one of the most important having been raised by Senator George Rankin. The honorable senator mentioned that not only in Australia, but also in New Zealand and Great Britain young men are now entering the Army for compulsory service. When a man enters upon what is perhaps the most vital part of his” career, he should not lose any of his civil rights because of the fact that he is fulfilling his duty to his country. I am pleased that this bill has been presented.
I was very perturbed because there is no thing in the bill to indicate the need for such a measure. The very fact that this bill has been introduced to provide appeals from courts-martial convinces me that in some one’s judgment there must have been cases of miscarriage of justice. That is why I and my friend Senator Laught were anxious to see the report of Mr. Justice Reed, as he then was, on courts-martial in the Australian Army. In common with Senator Wright and others, I cannot understand why that report has not been made available, particularly as evidence was taken on the matter. The very fact that the report has not been tabled, coupled with the introduction of this bill, causes me to assume, whether rightly or not, that there have been in the past some grave miscarriages of justice in connexion with courts-martial
From my limited experience I am of the opinion that men entering the Army know nothing of the correct procedure to adopt when they face their commanding officer. My experience has been that the members of the forces can be divided into two distinct classes. There are the people who serve behind the lines, of whom I knew very little until I served in World War II., and there are the people in the front line. When a soldier is in a unit he is conscious of the esprit de corps that exists there, and he is jealous of the honour of his unit. A normal and decent soldier may occasionally kick over the traces, and in that respect I would not like to think that wings sprouted from my shoulders. If such a soldier did commit an offence, generally speaking he received a very fair deal. But if there was a slight miscarriage of justice, the ordinary ranker knew nothing of the redress which was available to him. This bill assumes that from the time the accused was charged with the initial crime or mistake, all the legal processes have been faithfully carried out. My experience has been that in many cases an ordinary soldier, unless he happened to be attached to a pretty good unit, with a commanding officer well versed in military law, did not have a chance. I have served in the field, and I would not like to say who is a brave man and who is not. I well remember an occasion before we had a hop-over, when if some one had said to me, “ Let us get out “, I believe I would have said, “ Yes, let’s go “. I remember my own sergeants, under whom I trained and whom later I happened to command. They were the most courageous of men, but I have seen them wilt after being under shell fire day after day. They had a vague look in their eyes, and they quivered under shell fire as thoroughbreds do. They knew they were going to break down, and God alone knows what their thoughts were, or whether they realized that their officers knew of their state of mind. But casualties were too great for them to be sent out of the line. Those men were broken, but they were not cowards. In a critical period, when men break or become nervous wrecks, it is an officer’s job either to put them to sleep or get them out of the line, and that is not a very happy experience. But pity is contagious, and you cannot be pitiful in times of dire stress.
That is why I hope that there will be some man on this tribunal who has had military experience, particularly experience of the front line of battle, who will have an understanding heart. Such a man will not be swayed by the cold facts put before him, but will be able to visualize the situation that is under consideration. I hope that the Minister in charge of this measure will ensure that the views of honorable senators are brought before the Government. I support the bill, and I hope that it is the forerunner of many other improvements of our Australian military law which will ensure that the young men who enter our Army in the future will not lose all their civil rights by so doing.
– It is unfortunate that there is nol more interest being displayed by senators in this matter, their lack of interest being obvious by the number at present in the chamber. From what I have heard during this debate, one could quite easily forget that we have a navy, because we have heard so much about army courts-martial. These tribunals are conducted differently in the
Navy from the way in which they are conducted in the Army. Since about the middle of the seventeenth century, a naval discipline act has been the authority for discipline in the Royal Navy. During my period of about 35 years in thai navy, we acted under the Naval Discipline let, which was introduced in 1866 and which had been continually amended since that time. In the Royal Navy, courts-martial consisted of five to nine officers of different ranks, according to the crime that was being tried. However, all such hearings were heard publicly on one of His Majesty’s ships or shore establishments.
The Judge-Advocate himself was present during the whole of the trials. I suggest that his presence put him in a position to be able to say whether the civilian law was being conformed with, while the naval officers comprising the court-martial or court of inquiry were able to ensure that the service laws were properly interpreted. That does not appear to happen in army courts-martial. Of course, at the time that I am speaking of, there was no appeal from the decision of the court-martial except in the case of death sentences, when the sentence could not be carried out without the consent of the Board of Admiralty in England, or, if it were in time of war, without the consent of the commander-in-chief of the station upon which the accused was serving. Under the English statutes, the Board of Admiralty has always had the power to suspend, modify or annul any finding of any court-martial held by the Royal Navy. Apparently, that system is also different from the army system. I do not know whether that indicates that there was more justice in the Navy than in the Army, but nevertheless there is an interesting difference between the systems in operation in both services. I know nothing of the procedure in the Royal Air Force or the Royal Australian Air Force, because they are recently formed services.
Another interesting point about the Royal Navy is that passengers such as troops or civilians, who are being carried on naval ships, are also liable to be tried hy a naval court-martial if they should do anything to endanger the safety of the ship, or anything of a treacherous or treasonable nature. The remarks of Senator “Wordsworth about courtsmartial in the Army greatly interested me, but again, during his speech, I was impressed by the difference between naval and military courts. In the Royal Navy, officers of different rank are entitled to try prisoners accused of different crimes. For example, a sub-lieutenant or a lieutenant would be able to deliver summary judgment in regard to such offence3 as a man coming on board drunk. Under the Naval Discipline Act such a man could be given what we call No. 11 or No. Ha punishment, which entails stoppage of grog for a fortnight or extra duties for a fortnight. Above the sublieutenant, or lieutenant, was the officer of the day, who would be able to deal with more serious offences, and give more serious punishment. Then, offences in ascending order of seriousness would go to the commander and the captain. If the crime was too serious for the captain to deal with, a court-martial was convened. The duties of each officer in regard to punishment are laid down in the King’s Regulations and the Admiralty instructions. In that sense again, the Navy procedure is completely different from the procedure in the Army as detailed by Senator Wordsworth and Senator George Rankin.
I was most interested in the remarks made by Senator Wright. I had previously been rather puzzled by the apparent contradiction in clauses 23 and 24, but the honorable senator made those provisions quite plain. He indicated that the court of appeal could do only one of two things, either uphold the appeal or reject it. The exact meaning of the measures that come before us is not plain to one unversed in the law, unless he has read the bills through very carefully, which, in this case. I have not done. I agree with Senator Wright that a representative from one of the services need not be a member of this proposed tribunal. I do not see the necessity for that, because the fact that an offender has been tried by a court-martial is clear proof that he has been tried by his peers - by the men who understand the service.
– Surely, he has not been tried by his peers?
– No, he has been tried by his superiors.
– I suggest that these men are tried by their equals, who understand the reasons for their appearance before the court-martial. Therefore, there is no necessity to have any persons as members of the appeal tribunal other than men who understand the rule of law, and can decide, purely from the view-point of the law, whether the equals of the man who was tried were right or wrong in their judgment. That is why they are there. I agree entirely with Senator Critchley’s remarks. Many years ago my father was a trooper in King Edward’s Horse and he involved himself in serious trouble by complaining bitterly about first field punishment for cowardice. Being only a trooper his views were not wanted. As some honorable senators may know, first field punishment, until about half-way through World War I., was the crucifixion of a man by tying him on the wheel of a gun carriage in the front line. In the early days in the Navy a junior officer was able to order a score of lashes.
Several honorable senators dealt with the feelings of cowardice and neurosis experienced by servicemen, and I agree with them that, in the past, those accused of these defections were treated with rough justice.
A matter in which the appeal tribunal oan play a valuable part is in respect of the offence of being absent without leave, in certain circumstances it may be an almost negligible offence but in others it could amount almost to a charge of desertion, which in war-time is a most serious matter. I have attempted to show some of the differences between naval and army discipline. I am happy to support the bill because it is an important step in the right direction. Fears were expressed by Senator Armstrong, Senator Wordsworth, and others, but I assure them that before an accused person reaches this tribunal he will have been tried by those who understand him and know what he has been through. On that account, there is no need to have servicemen or ex-servicemen on the appeal tribunal to decide what is purely a matter connected with a. rule of civil law.
– in reply - Speeches from both sides of the House in this debate have been on a high plane. This measure introduces an entirely new feature of courts-martial, and the general impression I have gathered from the debate is that honorable senators regard it as a move in the right direction to meet present-day service conditions. Some honorable senators have disagreed with different parts of the bill, and I concede that it does not contain everything that is wanted or needed. But it is at least a beginning and it can be improved.
Several questions have been asked, and I shall reply to them. Senator Wright wanted to know whether there was a provision for bail pending the hearing of an appeal. I have been advised by the service authorities that the usual military provision relating to the suspension of sentence will apply. These are contained in section 57a of the Army Act. Bail will be on a similar basis to that allowed in a criminal case. The honorable senator asked, also why the bill did not contain provision for a new trial. I am advised that clause 31(1.), paragraphs (6) and (c), empower the tribunal to hear further evidence, and it is considered that this adequately meets the situation. This provision follows the United Kingdom Courts-martial Appeal Act which, according to recent information, is proving satisfactory.
asked for comment on clause 23 (2.) which empowers the tribunal to disallow an appeal if it considers that no substantial miscarriage of justice has occurred. This provision is contained in the United Kingdom Courts-martial Appeals Act, the United Kingdom Criminal Appeals Act 1907 and in criminal appeal legislation in Australian States. It is a usual criminal appeal provision and is a subject of extensive case law.
Senator Rankin, Senator Seward and others suggested that a member of the services, who had experience of war conditions in either World War I., World War II., or the Korean War, should sit on the appeals tribunal because of his knowledge of the actual conditions under which the accused served. Clause 31 makes provision for that. Sub-clause (1.) (e) provides that the tribunal may - where it appears to the tribunal that special knowledge of a matteris required for the proper determination of an appeal - appoint a person with that special knowledge to act as an assessor to the tribunal.
– That would be to deal with a question of fact.
– The tribunal may appoint somebody from the services having experience or knowledge of the particular type of event in respect of which the accused is charged. It has been suggested that the members of the tribunal may not have had actual war service. I point out that there are many legally qualified men in this country who have had exceptionally good war service, and I do not think there should be any difficulty in selecting from the States of the Commonwealth suitable men with both legal and service experience.
– Yes, but we want an assurance that the Government will appoint such men.
– I think that the service departments would naturally get ex-servicemen to serve on the tribunal. It seems to me that the position will be roughly the same as that of the Repatriation Department tribunals. As the honorable senator knows, every member of those tribunals is an ex-serviceman.
– The Repatriation Act specifies that the members of repatriation tribunals must be ex-servicemen. There is no such specification in this bill.
– That is true, but I suggest that we should not make the legislation too watertight. We should leave room for some discretionary power, in order to obtain the best men who are available. As I have said, there must be many legally qualified men in Australia who are also ex-servicemen, and who would be suitable for appointment to this tribunal.
This has been a most interesting debate. En my opinion, a great step forward has been taken by the introduction of this legislation. As time goes by and evidence of the practicability, or otherwise, of the legislation comes before the authorities, it may be necessary, for the benefit of ser vicemen, to make changes. Should such changes be necessary, I am sure they will be made.
Question resolved in the affirmative.
Bill read a second time.
– I refer to clause 20, “Bringing of appeals “, and move -
That sub-clause (2.) be left out with a view to insert in lieu thereof the following new sub-clause : - “ (2.) A person is not entitled to apply for leave to appeal to the Tribunal against a con viction, other than a conviction involving sentence of death -
unless he has, within the prescribed period, lodged a petition praying that the conviction be quashed by the prescribed authority; and
subject to sub-section (2.) of the next succeeding section, unless -
he has been notified that the petition has been refused; or
the prescribed period after the day on which the petition was lodged has expired.”.
The amendment is of a drafting character only. The purpose of sub-clause (2.) is to require the person convicted by courtmartial, except in the case of a conviction involving sentence of death, to lodge in the first instance a petition praying that the conviction be quashed. The petition must be lodged within the prescribed period. The convicted person becomes entitled to apply for leave to appeal to the tribunal when he has been notified that the petition has been refused or a period, to be prescribed, has expired without the petition having been dealt with.
As sub-clause (2.) of clause 20 now stands, it is not clear that a person who lodges a petition under the special provisions of sub-clause (2.) of clause 21 must do so within the prescribed period. Sub-clause (2.) makes special provision where the conviction by court-martial took place outside Australia. In this case the convicted person can lodge his petition and application for leave to appeal at one and the same time. It was intended that the time limit for lodging the petition should apply in this case also. The amendment to sub-clause (2.) makes the intention clear.
Amendment agreed to.
– I refer to clause 30, which reads -
Subject to Part V., the determination by the Tribunal of an appeal, or of any other matter which, under this Act, the Tribunal has power to determine, is final and conclusive. and I move -
That the words “Subject to Part V.,” be left out.
Amendment agreed to.
– I move -
That, in clause 30, the words “is final and conclusive “ he left out, with a view to insert in lieu thereof the words “ is not subject to review under naval law, military law or air force law “.
It was intended by this clause simply to ensure that the determination of the tribunal should be the final step in the military disciplinary system. As the clause stands, the words “ final and conclusive” might be construed as having a more far-reaching effect, and of conferring judicial power on the tribunal. The amendment carries into effect the real intention of the clause, and at the same time avoids the constitutional difficulty. As stated in the second-reading speech of the Minister for Trade and Customs (Senator O’sullivan), the tribunal will not be a court exercising the judicial power of the Commonwealth, but is to form a part of the same disciplinary system as courts-martial do.
Amendment agreed to.
– As, unfortunately, the Minister for Repatriation (Senator Cooper) is not the Minister who was in charge of the bill during the earlier portion of the second-reading stage, I now invite his attention to a point I made in my secondreading speech.
– I was present at the time.
– That being so, I now ask the Minister whether he has had an opportunity to discuss with the Minister for the Army the matter of the report I raised, and whether the report of Mr. Justice Reed on courts-martial made approximately ten years ago at the instance of the government of the day, is available for perusal. I pointed out then, and I stress now, that, in my opinion, it is essential that the report be made available to members of the Senate. The debate to-day has made it clear that honorable senators take most seriously the question of courts-martial, but that is only a modicum of the law relating to military offences. The provisions of military law, before the appeals stage is reached, should be looked at. I should like the Minister to say whether he ha? had an opportunity of going into the matter further, and especially whether the report of Mr. Justice Reed will be made available to honorable senators. 1 cannot stress too greatly the importance of this chamber having access to all the available law and knowledge on the subject. Accordingly, I ask the Minister whether he will indicate when the report will be available, if it is not available now.
– I have been informed by representatives of the services that the whole body of military law is under review now by a departmental committee. That committee is taking into consideration the result of the inquiry by Mr. Justice Reed. When the inter-departmental survey of the whole matter is concluded, a report of the survey will be available. I believe that it will be a departmental document, and it will contain recommendations for changes in the law.
– I thank the Minister for Repatriation (Senator Cooper) for the attention he has given to this matter. 1 wish to make one further observation, and I am encouraged to do so by the excellent co-operation that the Senate has received in connexion with the measures relating to trade marks and patents. In each case, a departmental committee furnished a report which was printed, with suggested amendments to the law, in a small booklet. Copies were circulated some months before the bills were introduced. I suggest to the Government that a similar practice should be adopted in connexion with the proposed alterations to military law, so that honorable senators will have an opportunity to study all aspects of the proposals, and will not be called upon to make rush decisions on any legislation that might come before them. I thank the Minister for Repatriation for the assistance he has given honorable senators at rather short notice in connexion with the bill that is before the committee.
– I shall be pleased to direct the attention of the Minister for Defence (Sir Philip McBride) to the suggestion that has been made by Senator Laught.
Bill, as amended, agreed to.
Bill reported with amendments; report adopted.
Bill read a third time.
– I move -
That the report of the Parliamentary Standing Committee on Public Works, relating to the proposed removal of the dual purpose jetty at Townsville, Queensland, presented to the Senate on the 24th May, 1955. be adopted.
The matter to which I direct the attention of the Senate derives from a very tense period of the war in the Pacific in 1943. The port of Townsville was filled in those days with many ships, mostly American, which were engaged in the carriage of troops and equipment. There was also great naval activity in the port, and wharfage facilities were overtaxed. The authorities of the United States of America asked for a dual purpose jetty to be constructed in the harbour; that is, a jetty that could be used by naval vessels, including lighters, and also by ships of the merchant marine. The Allied Works Council was the Australian Government instrumentality in charge of those operations at the time, and it agreed to provide a jetty. After negotiations with the Townsville Harbour Board, an agreement was reached and, in the course of time, the dual purpose jetty was constructed.
In March, 1955, the Minister for Works (Mr. Kent Hughes) asked the Public Works Committee to report on a disagreement between the Commonwealth Department of Works and the Townsville Harbour Board on the question of financial responsibility for the demolition and removal of the dual purpose jetty. The decisions of the committee are contained in the report that is the subject of this motion, and is now before the Senate. For the information of honorable senators, I wish to say that it was admitted in sworn evidence given before the Public Works Committee- at Townsville that the Allied Works Council, a Commonwealth war-time, instrumentality, had agreed with the Townsville Harbour Board in 1943 that the dual purpose jetty was to be a temporary structure for the .duration of the war and twelve months afterwards. The Allied Works Council, for and on behalf of the Australian Government, agreed with the Townsville Harbour Board that the jetty would then be removed at the expense of the Australian Government. No difficulty about the removal and demolition of the jetty would have arisen but for the fact that the Townsville Harbour Board informed the Allied Works Council in 1943, after the jetty had been constructed, that it wished to encase the piles of the jetty with concrete sleeves. That request was submitted to the Allied Works Council at the time, and the harbour board made it clear that it would be prepared to bear the cost, which was about £9,000, out of its own funds. The Allied Works Council advised the Townsville Harbour Board that the encasing of the piles in concrete sleeves was not considered necessary by the council but that body raised no objection to the Harbour Board proceeding with the work in the light of the fact that the board was bearing the cost. If honorable senators wonder why it was necessary to encase the piles in concrete sleeves, the answer is that this was done because of the prevalence of marine borers in the tropic waters of Townsville Harbour. Over a period, of course, these borers are likely to undermine wharfs by eating into the piles.
– Was there a difference of technical opinion?
– Yes. There was a difference of opinion, hut that was the view expressed by the Townsville Harbour Board, at the relevant period, to the Allied Works Council, and the board was prepared to back its opinion about the inroads of marine borers by paying £9,000 to cover the cost of the work considered necessary to combat them. It is not my object to go over the long story. The majority of the Public Works Committee, after hearing the evidence on all aspects, admits in its report, now before the Senate, the responsibility of the Commonwealth to remove the jetty in accordance with the original agreement. But the majority view of the committee wa3 that the Commonwealth responsibility was set aside to a great extent by the fact that the concrete sleeves had been added to the piles. The Committee declared that at no time did the Commonwealth accept responsibility for the cost of removing the concrete sleeves. In addition, the majority decision was against the Commonwealth admitting any liability for the removal of the concrete sleeves, though it was admitted that the Commonwealth should adhere to its original arrangement to demolish and remove the jetty.
– Why not take the wharf away and leave the sleeves there ?
– The Commonwealth has to remove the whole thing. Under the agreement with the Harbour Board it must remove the jetty holusbolus. The majority of the Public Works Committee recommended also that a new agreement should be entered into by the Commonwealth and the Harbour Board to resolve the question of financial responsibility for the removal of the sleeves only. What I have said merely represents the facts of the case. I am not by any manner of means attacking the majority finding of the committee. Far from. it. I have the most profound respect for the common sense and sound judgment of my colleagues on the Public Works Committee. There is always room for honest differences of opinion on any public body.
– Did the honorable senator present a minority report?
– That interjection brings me to the crux of the question. I took a minority view, but, under the system that prevails in relation to reports of the Public Works Committee, the minority view is not recorded. That is why I make now this brief reference to my view. The Public Works Committee’s reports do not make provision for minority views, and my whole concern in raising this matter to-day is to secure the publicity that will enable the people of north Queensland, and in particular the people of the city of Townsville and the users of that port, to know my point of view, having particular regard to the fact that I have the honour to share the representation of Queensland in this Senate. I merely wish to convey through the Senate to north Queenslanders who are interested in this matter the fact that I differ from the majority decision, and that I moved an amendment, which was seconded by Mr. O’Connor, and which reads as follows: -
That the Commonwealth Government assume responsibility for removal of the jetty, including the concrete sleeves, as soon ‘ as possible, at its own expense.
I do not propose to give any detailed supporting reasons for this statement to the Senate, and I have not risen to arouse any contention. At the moment, there is a deadlock between the Department of Works and the Townsville Harbour Board. The committee has made a recommendation to the Minister that fresh negotiations should be undertaken to produce a new agreement. That deadlock is not yet resolved and neither of the two bodies, in my opinion, is free from some fault. The jetty was constructed as part of the overall Australian war effort, and I moved my amendment in the Public Works Committee on the grounds that the cost of removing the sleeves would not exceed £4,000 or £5,000, and I did not think that sum of money was worth quibbling about. The Commonwealth, in my view, is in honour bound to carry out its undertaking to remove the jetty, even if it means a small extra expense.
– What are the implications of rejection of the Public Works Committee’s report? What would the position be then?
– Rejection by whom ?.
– By the Parliament.
– I have not extended my consideration to cover the possibilities involved in a rejection of the report. Indeed, I have never considered that as a possibility. The report has been submitted to the Minister and to this Parliament. It has not been challenged in any way, so I cannot answer a supposititious proposition.
– Is the jetty not of any use?
– The jetty was a good one when it was built by the Allied Works Council in 1943. The Townsville Harbour Board at that time thought it was a good jetty too and it was the board’s intention to retain it. That is why that board was prepared to spend £9,000 to encase the piles in concrete. Now I come to the milk in the coco-nut. Twelve years have passed, and a harbour board with greatly altered membership has decided that the present jetty is in the way of its plans for ambitious improvements to Townsville harbour. The position is further complicated because the Commonwealth Department of Works in 1949 more or less entered into possession of the jetty in order to carry out the
Commonwealth’s undertaking to remove it. The department removed a great number of piles and a considerable quantity of decking. Some of the decking and piles were sold to Hayles Shipping Company, which used them for building jetties on Magnetic Island. The department sold some of the piles and decking to the Department of the Navy to build jetties at Manus Island.
– What is the estimated cost of demolishing the jetty completely?
– The estimate given to the Public Works Committee for total demolition is £25,000. The removal of the sleeves is not an easy task and a rough estimate of the cost of this work is about £5,000.
– The Government ought to stand that.
– That is my view, but still I am not taking up a contentious view against the majority opinion of the Public Works Committee. Its members are all good men and true, and they have made their findings according to the evidence and according to their lights.
Debate (on motion by Senator Cooper) adjourned.
Senate adjourned at 5.6 p.m.
Cite as: Australia, Senate, Debates, 26 May 1955, viewed 22 October 2017, <http://historichansard.net/senate/1955/19550526_senate_21_s5/>.