8th Parliament · 1st Session
The President (Senator the Hon. T. Givens) took the chair at 3 p.m., and read prayers.
Camps of Training
– I ask the Minister for Defence is it the intention of the Government to introduce a scheme providing for seventy days’ continuous military training ? If so, will such system be introduced by regulation or will a Bill be passed by both Houses of Parliament to give effect to it?
– The answer to the first question is that the consideration of the advisability of any change in the duration of training has been deferred until the close of the Imperial Conference in England and the return of the Prime Minister to Australia. The answer to the honorable senator’ssecond question is that no change in the duration of training can be introduced by regulation.It would have to be done by the passing of a Bill amending the Defence Act.
Suspensionof Standing Order
Senator E. D. MILLEN (New South
Wales - Minister for Repatriation) [3.2]. -I ask the leave of the Senate for the suspension of standing order 68 up to and including Friday, 13th instant, for the purpose of enabling new business to be commenced after half-past 10 o’clock at night.
– Order! What the honorable senator desires cannot be done merely by asking leave since it requires the consent of an absolute majority of the Senate.
– I move-
Thatstanding order No. 68 be suspended up to and including Friday, the 13th inst., for the purpose of enabling new business to be commenced after half-past 10 o’clock at night.
– The only thing that troubles me in connexion with the motion is what is involved in the term “new business. ‘ ‘
– It does not imply any intention to bring in. business other than that which is now on the business paper of the Senate. The purpose of the suspension of the standing order is to enable us, should it be necessary, to take up, for instance, the consideration of the second order of the day on the business paper after half -past 10 o’clock at night..
Question resolved in the affirmative.
The following papers were presented : -
Defence. - Statement showing -
Names of officers appointed to the rank of Major-General or higher rank in the Australian Military Forces, and particulars of pay received; and
Amounts now paid and the rate of pay’ for corresponding positions or ap- p ointments in the Commonwealth Military Forces prior to August, 1914.
Mail Service to Europe. - Copy of Agreement, dated 27th April, 1921, between the PostmasterGeneral for the Commonwealth and the Orient Steam Navigation Company Limited, for the conveyance of mails between Great Britain and Australia.
Northern Territory. - Ordinances of 1921 -
No. 4. - Workmen’s Compensation.
No. 5. - Supreme Court.
Senator NEWLAND laid on the table the report of the Standing Committee on Public Works, together with minutes of evidence relating to the proposed erection of an additional telephone trunk line between Sydney and Melbourne.
Senator DELARGIE presented a progressreport from the Select Committee on Senate officials.
– I ask the Minister for Defence whether his attention has been directed to a statement made by Mr. Carey, general secretary of the Political Labour League of New South Wales, in the Sydney press, to the effect that at a meeting organized by the Political Labour League, as a counter demonstration to thegreat loyalty demonstration held in Sydney on Sunday last
– I rise to a point of order. I ask whether the honorable senator is in order in making a wilful . misrepresentation of the Labour party’s meeting by way of a question, and whether he is in order in making any statement in putting a question.
The PRESIDENT (Senator the Hon.
T.Givens). - So far as I heard Senator Duncan I did not understand him to make a statement. I cannot be the judge of whether any statement made in the Senate is a misrepresentation. Honorable senators must not make’ statements in asking questions.
SenatorDUNCAN.- It is said that a meeting organized by the Political Labour League and addressedbyMr. Murphy, M.L.A., a follower, in the New South Wales Parliament, of Mr. Dooley, was broken up by a number of returned soldiers, who were supplied with whisky from Defence motor cars.
– Order! The honorable senator is not in order in quoting any statement from the press or from individuals outside. He is not, in asking a question, entitled to make a statement himself, much less to quote a statement made by any person outside.
– I wanted to know whether military motor lorries were used for the purpose of supplying whisky to soldiers in the Sydney Domain last Sunday.
– The honorable senator intimatedby telegram that he intended to ask whether DefenceDepartment motor lorries were so used. I accordingly had a telegram sent to the Dis trictCommandant drawing his attention to the statement made that whisky was supplied from Defence Department motor lorries, and asking fora statement from him giving the actual employment on Sunday of all motor transports owned or hired bythe Defence Department. I have received from him the following reply dated Sydney, 12th instant:-
All motor vehicles owned by Defence Department were in garage, Victoria Barracks, whole of Sunday last, with exception of one ambulance from 8.15 to 9.50 conveying patient to hospital. (Signed) Brown.
– In view of the serious occurrences that have taken place in Sydney, will the Minister for. Defence appoint a Select Committee of the Senate to make a full inquiry into the whole business ?
– What business?
– I thought that honorable senators were acquainted with it. I refer to those serious occurrences and riot
– The honorable senator means Mr. Judd and his revolver. The Sydney Courts dealt with that.
– The Sydney Courts dealt with one individual. I would notbe allowed to make a statement in asking a question, but I thought that Ministers were aware of the fact that there had been serious rioting by returned soldiers in Sydney, who tore down the Australian flag from the Labour party’s platforms in the Domain.
– Order! The honorable senator is making a statement, and that is not in order.
– In the first place, it is not competent for a Minister to appoint a Select Committee. That can only be done by the Senate. In the second place, the maintenance of civil order is the duty of the State Governments, and not of the Commonwealth Government.
Agreement with Orient S. N. Company Ltd.
.- I beg to lay upon the table of. the Senate a copy of the agreement en- tered into between the Commonwealth and theOrient Steam-ship Navigation Company Limited, for the carriage of mails between England and Australia. In doling so I ask leave to make a statement, and to move a motion.
-Thehonorable gentleman may submit a motion in regard tothe paper which he has just laid upon the table only by leave of the Senate. Is it the pleasure of honorable senators that the Vice-President of the Executive Council have leave to move a motion without notice ?
Several Honorable Senators. - Hear, hear !
– I do not intend to ask honorable senators to carry the motion which I am abouttosubmituntil to-morrow,but I desire tomake a statement in order that they may understand the position. I move -
Th at the Senate approves the agreement made and entered into on the 27th day of April, 1921, between His Majesty’s PostmasterGeneralin and for the Commonwealth of Australia of the one part, and the Orient Steam Navigation Company Limited of the other part, for the carriage of mails and services to be performed as therein provided, a copy of which agreement has been laid upon the table of the Senate.
– Does the honorable gentleman desire us to agree to that motion to-morrow ?
– We intend to make an attempt in that direction.
– If the Government desire to adjourn to-morrow for a few weeks, it is rather a stiff proposition to put before us, because it is something which is entirely new.
– The agreement is being tabled now so that between the present time and to-morrow honorable senators may have an opportunity to study it and to see what action is necessary.
– I propose to read my statement, because itrelates to a very close, technicalmatter. It is asfollows: -
The present contract with the Orient Steam Navigation -Company Limited was entered into on thel5thNovember,1907, and provided for a fortnightly mail service between Australia and Great Britain,which, alternating -with a fortnightly service entered into between the British Government and the Peninsular and Oriental Steam Navigation Company, gave us a regular weekly mail service. The Orient Company gave us twenty-four calendar months notice to terminate the contract, which will expire oh the 18th September, 1921.
In view of the approaching termination of the present agreement, negotiations were entered into by the Government with representatives of the Orient Company. The latter stated that, in their opinion, it was desirable to treat the immediate future as a transitional period, and that it would be unwise for the Commonwealth Government to enter into commitments of an onerous and far-reaching character at thepresent level of prices, whilst the same reason,combined with the uncertainty as to future revenue, would make such commitments wholly unacceptable to the company. They, therefore, proposed that an arrangement of a temporary nature, which would cover the transitional period referred to, and which could be terminated by either party giving twelve calendar months’ notice at any time. Their proposal provided for thirteen despatches per annum each way at four-weekly intervals (which was the most frequent service they could give with the vessels at their disposal), and was based generally on the terms and conditions of the present contract.
The result of the negotiations was that an arrangement has been entered into under which the Orient Company have agreed to continue to carry mails under the terms of the present contract, subject to the following alterations: -
That the contract be terminable on twelve months notice by either party, which may be given at any period of the year.
That the company will provide a four- weekly service, instead of a fortnightly service as in the original contract.
That the mail ports be Marseilles or Toulon (or other approved European port) and Fremantle, instead of Brindisi (or other approved port) and Adelaide. It may be stated here that all first class mail matter now comes from Fremantle by train, and it is proposed, apart from this agreement, to bring second class mail matter also.
That the period of transit shall be632 hours out, and 644 hours in return.
This is only six’ hours less each way than the present contract period between Brindisi and Adelaide, although the distance from Toulon to Fremantle is 500 miles shorter, but the company state that it is impossible to do the voyage more quickly with the coal now supplied to them, “ which, they say, is the best they can get.
That the subsidy be £130,000 per annum for afour-weekly service, asagainst £170,000 for a fortnightly service.
The company will call at Adelaide, Melbourne,Sydney, and Brisbane, as under the present contract, and Hobart three times a year (itwas six times -under the fortnightly service), giving the Postmaster-General power to omit Hobart, as in the present contract.
Refrigerated space will be provided for in four regular steamers,but if necessity arises they have power, as in the present contract, to use one other steamer which may not be refrigerated. They state that the extra steamer which they intend to use is the Ormuz, which is now being refrigerated.
Instead of their charges for butter and fruit being fixed as in the present contract, the new agreement stipulated that the contractors shall not, without the written approval of the PostmasterGeneral, charge, demand, or receive, for the carriage of butter or fruit upon a mail ship, any higher rates of freight than the current ruling rates of freight charged or received (after deduction of all rebates allowed or allowable) for the carriage of butter or fruit on other lines of steam-ships regularly engaged in the trade between the ports of call in the Commonwealth and the port or ports of discharge of the mail ship.
The contract is subject to the British Government arranging with the Peninsular and Oriental Company for an alternate four-weekly service, thus enabling a regular fortnightly service between Australia and Great Britain.
Articles of agreement on the lines of the present contract, amended to carry out the aforesaid alterations - omitting or modifying such conditions as the altered circumstances render inoperative or inappropriate, as, for instance, the clauses relating to the building of new ships, the option of the Postmaster-General to purchase the steamers, &c. - have been entered into.
The agreement is the best we can secure at the present time, and will provide for a regular fortnightly service (for there is little doubt but that the alternate four-weekly Peninsular and Oriental service will be arranged), and being terminable on short notice will enable the Commonwealth Government, as soon as the opportunity arises, to make provision for a service of greater frequency and travelling speed. It is subject to the approval of Parliament.
Debate (on motion by Senator Gardiner) adjourned.
Motion (by Senator Russell) proposed -
That the resumption of the debate be made an Order of the Day for to-morrow.
– Can we discuss whether the adjourned debate be made an Order of the Day for to-morrow, or whether the debate should be adjourned for a week?
– The honorable senator is at liberty to put forward his views on the question of the day on which the adjourned debate shall be resumed, but he must not discuss the main question on this motion.
– There is a desire on the part of honorable senators that the Senate should rise to-morrow afternoon. I believe the Government are quite agreeable to that procedure, but if the new mail contract is to be discussed tomorrow, that will be utterly impossible. It will take us all our remaining time to deal with the Bills that are before us, and this is an important matter. We shall have no time to consider it properly before to-morrow afternoon.
– We may resume the debate to-morrow afternoon, but we need not finalize the motion.
– If honorable senators desire to finish the Bills before us, and also this motion, to-morrow, well and good; but it seems a very limited time in which to deal with an important question of this kind. We can only reach it after we have disposed of the Bills now before us. I would urge that, instead of the motion being dealt with to-morrow, it should be dealt with immediately the . Senate re-assembles. I sincerely hope that honorable senators will not discuss it to-morrow.
– Senator Thomas seems to misconceive the motion. The debate on the agreement has already been entered upon, and the Minister (Senator Russell) has moved its ratification by the Senate. The debate hasbeen adjourned, and the motion before us is that its resumption be made an Order of the Day for to-morrow. If Senator Thomas and others do not feel disposed to finalize it to-morrow, it does not follow that we shall be called upon to-morrow afternoon to say yea or nay to the ratification of the agreement.
– Does the Minister want it ratified before we rise ?
– That is another matter.
– I only want to get the paper printed to-day. That is as far as I wish to go to-day.
- Senator Thomas seems to be under the impression that the debate will be resumed and finished tomorrow.
– The Minister may tell us to-morrow that it is necessary to finish it, as we were told the other day that it was necessary to finish the debate on the wool arrangement in twenty-four hours to save Australia from collapsing. To-morrow we may be told that the agreement must be ratified by 4 o’clock.
– If this motion is carried we cannot discuss the agreement to-day, even if we finish our other business and have some time to spare this evening. Once we resume the debate tomorrow, if honorable senators show reasons why the agreement should not be dealt with finally, the ultimate decision of the Senate on it may probably be arrived at on some day after to-morrow. For the present, I am going to support the motion for the resumption- of the debate to-morrow.
– I am inclined to agree with Senator Thomas that the agreement is far too important to be discussed the day after it is introduced. It particularly and peculiarly affects the commercial community. I should like some expression of opinion from the chambers of commerce, the bankers, and those engaged in international and oversea trade and finance, because they are the people largely concerned in the regularity and frequency of the English mails. I have been led to understand that the only matters requiring the urgent attention of the Senate before 4 o’clock to-morrow afternoon are the remainder of the Defence Bill and the Air Defence Bill. Now the Minister representing the Postmaster-General has brought down, unexpectedly to me, a motion which in effect he is tabling today, printing to-night, and asking us to pass and approve of to-morrow.
– I do not. ask you to pass it to-morrow. I said we would resume the debate to-morrow.
– If the Minister would say now that he does not desire the Senate to finally ratify and approve the agreement to-morrow it would clear the atmosphere. So far as I can gather, the agreement provides, in the first place, for the payment of £10,000 per voyage for thirteen voyages per year, as against the previous contract for £175,000 for twenty-six voyages a year.
– The honorable senator is discussing the main question.
– I am, giving reasons why the Senate should have more time for the consideration of the agreement.
– The Senate can have all the time it wants. Senator Thomas. - That is all right.
– That maymean meeting next week.
– I appeal for time to get from the commercial community an expression of opinion as to whether a monthly service is any- good to Australia, and deserving of any money being paid for it, in view of our legal right to pay poundage rates and send our mails by any vessel.
– The honorable senator is now discussing the main question, and not the motion before the Chair.
– I am giving reasons why the Senate should have more time to consider this most important matter. I hope the Minister will give the Senate and the commercial community some time to consider whether the agreement is any good to them.
– Senator Pratten, and possibly another honorable senator, seem to have misconstrued, I hope unintentionally, the- purpose of the motion before the Senate. The question of the agreement has come forward, and the Minister representing the Postmaster-General, in conformity with accepted practice, has placed it on the table of the Senate with a proposal that the adjourned debate on the motion ho has submitted shall appear as one of- the Orders of the Day for to-morrow. No exception can be taken to that course. The question, as Senator Keating points out, is - what we will do with it to-morrow. Senators Thomas and Pratten say they want time to consider it. They can have that time so far as the Government are concerned. If tomorrow honorable senators say they want further time to consider it, they can have over the week to do “so. There is nothing to prevent them, if they so desire, from resuming the consideration of the agreement on Wednesday next.
– That is just it.
– Because there is a general desire, in which I share, that we should rise to-morrow afternoon, that does not carry us to the extent of saying that public business which may suddenly arise, is to be neglected on that account.
– This has not suddenly arisen.
– It has, in the sense that the agreement has only recently been completed. I do not know at the moment, nor does Senator Russell, whether it. is important that the agreement should be ratified in the next few days or in the next week or two.
– Is not the present contract operative until. September next?
– It is, but it occurs to me that the company may reasonably ask to be informed as early as possible what the decision of Parliament is. These arrangements are not made or unmade in a few hours. I hope the Senate will get out of its mind any thought that the Government are trying to stampede the agreement through. The Senate is master of its own business, and can have whatever time it likes for the consideration of the motions submitted to it. If the Senate is prepared to allow the motion to pass without further debate I shall make myself more familiar with the position before to-morrow, and ascertain the urgency of the matter. If it is urgent and it should go through now it may be necessary to ask honorable senators to meet again next week in order to complete the discussion.
– That will include the obligation of putting it through another place.
– I do not think the honorable senator need be concerned about another place, as there is sufficient here to occupy his time at present. If the Senate will allow this motion to go I shall make myself familiar with the degree of urgency attaching to it, and, if it is necessary in the interests of the country or the company the matter will be proceeded with. If, on the other hand, the matter can stand over without detriment there is no necessity to . disturb the mutual arrangement arrived at by the consensus of opinion in this Chamber.
– I do not like an opportunity such as this to pass without having a few words to say, as I believe it is the first time that a motion of this character has been debated. In moving that the debate be adjourned I did so with the desire I always have of meeting the wishes of the Government, and of allowing those outside who are interested an opportunity of perusing the agreement.. As the arrangement to be entered into between the Commonwealth Government and the company affects outside business interests in particular, ample time should be given to its consideration. I am quite as anxious as other honorable senators are - I openly state it - that the Senate should rise this week; but in view of the importance attaching to the motion, I suggest to the Vice-President of the Executive Council (Senator Russell) that we should be allowed next week to consider it. There are various interests to be considered, and a motion of such importance should not betoo readily carried. The Minister should let us know immediately whether he is agreeable to the Senate meeting next week - that will meet my convenience - although I do not intend to pose as one who is anxious to do well. I think I have previously stated that the Senate should adjourn while another place is discussing the Tariff, so that the members of this Chamber could come back prepared to give it the attention it deserves.
– Senator Gardiner was quite right in saying that it was the first time a motion of this character had been debated, and I had considerable doubt at the outset as to whether such a course was in order. During the debate I have been looking up our records, to see if there is any precedent, and I find that under standing order 74 the placing of business cannot be debated. This motion was not on the notice-paper, and as there is no precedent I did not at the moment realize that honorable senators who were addressing themselves to the question were out of order; I allowed them to proceed because other honorable senators had spoken to the motion. My ruling now is that in future no debate can be allowed on a motion relating to the placing of business.
Question resolved in the affirmative.
Motion (by Senator Russell) agreed to-
That the paper be printed.
Appointments of Major-Generals since 1918 - Supersession of Officers - Case of Captain G. C. McLennon.
asked the Minister for Defence, upon notice -
– The answers are -
asked the Minister for Defence, upon notice -
– The answers are -
The same rule, under the heading “Major,” dealing with promotions above that rank, provides as follows: - “ As appointments to these commands are regulated only by selection, an officer who is not recommended, that is, whose name is not included amongst those recommended, need not be so informed, but he must be shown, and will initial any definite adverse report made against him.”
asked the Minister for Defence, upon notice -
With reference to your verbal representation concerning the supersession of your son, Captain G. C. McLennon, Army Veterinary Corps, Australian Army Force, and your request thatin the event of it being decided not to inquire into this matter he be returned to Australia for termination of appointment, I regret to inform you that, as both these matters concern the internal administrationof the Australian Imperial Force which has been intrusted to the General Officer Commanding, I cannot see my way to comply with either of your requests. - Yours faithfully, (Sgd.) G. F. Pearce.
Will the Minister state for the guidance of officers in the future -
Will the Minister lay a copy of his letter to General Birdwood, giving him power over the promotion and supersession of officers in the field, on the table of the Senate, and state -
-The answers are -
Payments byCo-operative Companies.
asked the Minister representing the Treasurer, upon notice -
– The answers are -
asked the Minister representing the Minister for Home and Territories; upon notice -
– The answers are-
asked the Minister representing the Minister for Home and Territories, upon notice -
– The establishment of the war museums in the States is a matter for the State Governments concerned. Pending the provision of a permanent home for the exhibits reserved for the Commonwealth War Museum, the Museum Committee decided to exhibit half the collection in Sydney and the other half in Melbourne, in cooperation and sharing expenses with the re spective State Governments. The present New South Wales Government refused to co-operate; the Victorian Government accepted the Committee’s proposal. The Committee is now arranging in Melbourne an exhibition which will be open to the public in a few months’ time. The answers to the question, as far as this exhibition is concerned, are -
Six persons are employed in arranging the exhibition.
When opened to the public the cost of this exhibition to the Commonwealth Government will be £1,074 annually. This will continue until a permanent home is provided for the Commonwealth collection.
Cashing of Bonds
asked the Leader of the Government in the Senate, upon notice -
– The answer is -
The intentions of the Government with regard to the further cashing of war gratuity bonds will be shortly announced.
In Committee (Consideration resumed from 11th May, vide page 8266) :
Clause 51 -
Section 108 of the principal Act is amended -
by omitting sub-sections 2 and 3 and inserting in their stead the following sub-sections : - “ (3) For the punishment of offences against this Act or the regulations or the Army Act or the Naval Discipline Act commanding officers shall have all the powers conferred by the Army Act and the Naval Discipline Act with reference to offences against those’ Acts respectively, subject to such modifications and adaptations as are prescribed, which may include provision for the punishment of reduction in rank, dismissal or discharge for offences committed by members of the Citizen Forces when not on war service:
Provided that in the Military Forces a commanding officer shall not impose a sentence of imprisonment on any person and shall not award detention to a member of the Citizen Military Forces for an offence committed when not on war service, and that when not on war service a member of the Citizen Military Forces shall not be required to undergo confinement to barracks except when attending continuous training.
A person serving under Part XII. of this Act shall not be dismissed or discharged under any power conferred under this section.”.
Upon which Senator Pearce had moved -
That after the words “ Naval Discipline Act “ (first occurring) in proposed new sub-section 3, the following words be inserted: - “committed on war service “.
– This may be a little bit informal, but if honorable senators will turn to the memorandum they will see that it is quite clear. This clause amends section 108 of the Act dealing with the powers of the commanding officers, and the amendment is largely one of draftsmanship. Sub-section 1 in the principal Act already includes the power of “ dismissal,” and the words “ or discharge “ give no additional power, but use the term “ discharge,” which is the term more applicable to a soldier. Proposed new sub-section 2 repeats the old sub-section by providing for the right of trial before discharge or reduction, but it limits the right to cases where the discharge or reduction is due to an offence, and not due to such causes as reduction in establishment, or disbandment of a corps, such as the disbandment of the Australian Imperial Force battalions. If the reason for discharge is not for any offence, it is obvious that he cannot be tried. Proposed new sub-section 3 contains amendments consequential on the withdrawing of clause 18 applying to the Army Act in peace time. The sub-section as so. amended applies to war service only. It repeats the provisions of sub-section 3 in the Act, namely, the giving of the powers under the Army Act to a commanding officer to punish offences on war service against the Army Act, but in addition allows those powers to be exercised in respect of offences committed on war service against the Defence Act and regulations. It is to be remembered that every soldier has the right, except in very* minor punishments, of refusing to be punished by his commanding officer, and of being tried by court martial instead. The maximum punishment a commanding officer can give on war service is twentyeight days’ detention. Proposed new subsection 4 will prevent a trainee who is bound to train under the Defence Act from being discharged from that obligation by a commanding officer discharging him.
Amendment agreed to.
Amendments (by Senator Pearce) agreed to -
That the word’s “ which may include provision for the punishment of reduction in rank, dismissal or discharge for offences committed by members of the Citizen Forces when nob on war. service”, in proposed new sub-section 3 be left out.
That the word’s “and shall not award detention to a member of the Citizen Military Forces for an offence committed when not on war service, and that when not on war service a memberof the Citizen Military Forces shall not be required to undergo confinement to barracks except when attending continuous training”, in the proviso to proposed new subsection 3 be left out.
Clause, as amended, agreed to.
Clause 52 (On whose complaint prosecutions may be brought).
– I should like to know why it has been deemed necessary, to substitute the “Military Board or a prescribed officer” as the authority for launching prosecutions. . I quite realize the advisability of striking out the words “District Commandant,” and providing some other machinery, but it appears to me that this clause will unnecessarily load the Military Board, which should confine itself to giving effect to the Government policy rather than dealing with the minor matters of administration.
SenatorPEARCE (Western Australia -Minister for Defence) [3.48]. - In practice, of course, prosecutionswould not be launched by the Military Board, and that is why it is proposed to insert the words “or a prescribed officer.” We are not constituting the divisional commanders as the prosecuting authority, and therefore this must be the function of the Military Board or a prescribed officer. In nine cases out of ten’ a divisional officer or some of his staff might be required to conduct a prosecution, but there may be cases ‘in which the Military Board might have to launch prosecutions, for instance, against a divisional commander who, perhaps, had misappropriated funds. This of course is unlikely, but it is a possibility.
Clause agreed to.
Clause 53 -
Section one hundred and eleven of the principal Act is amended by omitting therefrom the words “ District Commandant “ (wherever occurring), and inserting in their stead the words “ District Base Commandant.”
Section proposed to be amended - 111. For the purposes of legal proceedings, all moneys subscribed by or for or. otherwise appropriated to the use of any corps or part thereof, or ship’s company or part thereof, and all arms, ammunition, accoutrements, clothing, musical instruments, or other things, belonging to or used by any corps or part thereof, or ship’s company or part thereof, and not being the private property of a member of the corps or ship’s company, shall be deemed to be the property of the commanding officer of the corps or ship’s company.
No gift, sale, alienation, or pawning, or attempted gift, sale, alienation, or pawning of any such moneys, arms, ammunition, accoutrements, musical instruments, or other things, by any person, shall be effectual to pass the property therein without the consent of the commanding officer.
If any property belonging to or used by or for the Defence Force is not appropriated to any particular corps or part thereof, or ship’s company or part thereof, or it is uncertain to which corps or part thereof or ship’s company or part thereof, it belongs, it shall be deemed to be the property of the District Commandant or District Naval Officer as the case may be.
An action or suit shall not abate or be determined by the death, resignation, or removal of the District Commandant or District Naval Officer or any commanding officer, but may proceed in the name of his successor.
– In the case of musical instruments and moneys provided by public subscriptions for troops proceeding overseas on a transport the practice has been to vest the ownership in the hands of the Officer Commanding the transport. So far as I can read this clause the effect will be to make band instruments and other things subscribed for in this way the property of the Officer Commanding the ship.
– The honorable senator will see that that is for the purpose of legal proceedings. He is the only person who can take legal proceedings, in respect to such things.
– Is there anything in the Act to prevent a Commanding Officer of a corps or a ship’s company disposing of such goods after the voyage is completed and appropriating them for his own use)
– He could be prosecuted under the civil law for misappropriating them.
– It appears to me that under the clause that would not be possible, because it provides that they shall be deemed to be the property of the Commanding Officer of the corps or ship’s company.
– The matter is simple enough if the honorable senator will have regard to the use of the opening words of the section proposed to be amended, “ For the purposes of legal proceedings - . “ It is possible that in connexion with these things it may be necessary to take legal proceedings, and the question is who is to take them. Obviously, it cannot be the persons who subscribed the money or the band instruments. They would not be a legal entity. The purpose of the section is to provide a legal entity to take legal proceedings where that is necessary in connexion with money or goods subscribed in the way provided for.
.- I am by no means sure that the Minister is correct as to the legal effect of the section to be amended by this clause. I think there is a good deal in what Senator Duncan has said, because the section does appear to give some sort of legal ownership to moneys or band instruments subscribed in the way referred to.
– We must vest the ownership of such property in some one for the purpose of legal proceedings. The question is whom should we vest it in ?
– I think that there should be a provision in the section to the effect that nothing contained in it should authorize the commanding officer of a corps or ship’s company to dispose of any such property without the authority of the Minister.
– We can do that at present under our Treasury regulations. Even for the disposing of obsolete material the Minister has to give authority. Rags from the Clothing Factory cannot be disposed of without authority.
– That is so where the goods are Government property, but , where moneys subscribed by the public are placed in the hands of the commanding officer of a corps or ship’s company it is somewhat doubtful whether he might not make an improper use of the property without rendering himself liable to be brought to account for doing so.
– Even the funds of a mess cannot be disposed of -without the authority of the Minister, although there are mess committees.
-I am not speaking of Government property. It seems to mo that the section which this clause is intended to amend does confer something in the nature of a legal ownership of money or property subscribed or appropriated, in the manner set out in the section, upon the commanding officer. Throughout the war there were many private subscriptions by various persons of . money and goods, and there were rumoursthat on certain occasions money and goods subscribed in this way were improperly disposed of. The section would appear almost to legalize that kind of thing.
– If some one stole these goods the section merely provides that the commanding officer shall be the person to take legal proceedings for their recovery. ‘
– But what would happen if the commanding officer himself improperly disposed of the property?
-Under the Statute law of the different States he would commit a theft.
– He might commit a breach of trust.
– More than that,he would commit a technical theft.
– Who is the owner of these goods?
– That would depend on the trust.
– To whom did regimental funds belong ? ‘ We used to have an idea abroad that, as in previous wars, they would be distributed ‘ pro rata amongst all ranks, but we found out afterwards that they really belonged to the officers’ mess.
– The honorable senator should know that that is not a fact.
– They were, as a matter of fact, appropriated willy-nilly to the canteen fund, and eventually were made good use of in the assistance of widows of deceased soldiers.
– With the full consent and approval of the Returned Soldiers’ League.
– Quite so, although the League, as such, had no right to dispose of those funds.
– The commanding officers, who were trustees for’ them, were never consulted in the matter, and I may say that some of them felt a little hurt in consequence.
– It seems to me that there is some legal difficulty involved in the section which might be removed by such a proviso as I have suggested. I am not prepared to draft a proviso while standing on my feet, and my preoccupation with other matters has prevented me’ from giving this section the consideration it deserves.
– It has been in operation for years, and has operated well.
– The clause under consideration will not affect the matter one way. or the other, but I think that at some future time the section which the clause is intended to amend should he given serious attention.
Clause agreed to.
Clause 54 (Disrating of persons serving under Part XII.).
– The word “ disrate “ is applicable to the Navy and the word “discharge” to the Army. Section 112 of the principal Act was amended in 1918 by the insertion of the words “not serving under Part XII. of this Act.” That amendment was made in order to bring the section into conformity with the provisions of Part XII., under which persons arc liable to compulsory training. The amendment went further than was intended, and this clause represents merely a drafting provision to make the necessary correction.
Clause agreed to.
Clause 55 -
Section 113 of the principal Act is amended by adding at the end thereof the following sub-section . - “ (2.) Except as to the limitation of the duration of arrest and custody when not on war service provided by the last preceding sub-section, that sub-section shall not prevent the application to the Military Forces, when subject to the Army Act, of the powers of arrest and custody conferred by that Act.”.
– This clause amends section 113 of. the principal Act, which deals with the power to arrest by the addition of a now subsection (2), as set out in the Bill. That sub-section applies only to the war service when troops are subject to the Army Act. It does not overridethe application of the present section 113 of the Defence Act, but provides that the section shall not be construed as preventing the application of the provision of the Army Act regarding arrest, when in war time the troops are subject to the Army Act. The amendment is really one of draf ting to insure that the intention of the Act as a whole is not inadvertently defeated by the form of drafting of the section.
– I move-
That proposed sub-section (2) be left out.
I submit the motion, perhaps, through excessive caution. I have listenedto the statement of the Minister for Defence, and I take it that the powers of arrest and. detention would really be extended by the proposed new sub-section. Another objection I have isthat there is a reference in it to the Army Act. I think that wherever these words appear in the Bill they should be struck out. We donotwant the Army Act. We want the Defence Department to develop an Australian Defence Act. Every referenceto outside Acts should, in my opinion, be removed from our Statutes.
-It is not my function to inform honorable senators as to the effect of amendmentsthey propose,butI may say that if Senator Gardiner’ succeeds with the amendment he wishes to submit the words leftin the clause will be meaningless. May I. suggest to the honorable senator that he would attain his end by voting against the clause?
– I do not mind taking a vote upon this matter in the simplest way that is possible. I have taken exception to the proposed new sub-section 2 because itrepresents practically the whole of the proposed amendment of section 113 of the principal Act.In view of a previous vote by the Committee, cannot the Minister himself move in the direction. I have suggested?
– No, the clause isin conformity with what wehave already done. I have not heard anybody, save Senator Gardiner, object to the application of the Army Act to our Forces in war-time.
– When the Minister introduced the Bill he stressed the necessity which exists for trainingour men, in time of peace, so that in time of war they would be accustomed to the Act under which they would then be operating. That was one of his principal reasons for desiring to apply the Army Act to our Forces in time of peace. The Committee, however, emphatically decided that the Army Act should not be applicable to those Forces in time of peace. The Minister has asked whether we should have one Act operative in time of peace and another Act operative in time of war.
– Brockman. - Why should we have one army operating under several Acts in time of war?
– The experience of the late war has shown us pretty conclusively that no matter where our troops may be engaged in the future they will be commanded by. Australian officers. I join with the; Ministerin expressing the hope that they will never again be called upon to fight outside the Commonwealth .
– The retention of the Army Act in its application to our men in time of war means that in the next war our troops will be fighting merely as an auxiliary to the British Army.
– The honorable senator must possess some hypnotic power, because he has expressed my own idea much more clearly than I could have expressed it myself.
– I do not anticipate, as some persons do, that we shall be fighting the British Army .
– I do not think that. I am sorry that the Minister should lose his temper.
– My remark was just as much deserved as was Senator Foster’s interjection.
– I would not hurt the Minister’s feelings for the world.
– The honorable senator should not make interjections of that character, because I am not less an Australian than he is.
– I hope that the Minister will not lose his temper.
– Whenever anybody imputes that I am not a good Australian, I shall lose my temper.
– The first time that I make a few remarks upon a matter which appeals to me the Minister loses his temper.
– He did not lose his temper with the honorable senator.
– I am sure that when I indorsed Senator Foster’s remarks I had no intention whatever of reflecting upon the Minister. In my opinion, the. retention in this Bill of the Army Act in its application, even in time of war, to a grown-up nation like Australia, is altogether unwarranted. During the recess the Minister will do well if he calls together his officers and advisers and instructs them to draft an entirely new Army Act, so that when our troops again engage in war they may do so under an Australian Act, and under the command of Australian officers. I trust that the honorable gentleman will look into the clause with a view to seeing whether - without weakening our Defence Act - this new provision cannot be struck out. It is not a provision which he cannot do without. The provisions under which he has been working for a considerable time are already in the principal Act. This is a new proposal, and in my judgment he may well allow it to go by the board. The matter will still be provided for in our Defence Act.
– If this clause be not retained, it will prevent a small Australian Force from co-operating with the British Army in any sphere of action.
– I cannot argue with the honorable senator when . he expresses an idea of that kind, because we all know that during the recent war we had the co-operation of Portuguese, French, and Italian troops, not to mention the troops of many other nations. To pretend that the deletion of this clause would interfere with the co-operation of our troops with the British Army is too absurd to warrant serious consideration. This is a question! of wiping out the Army Act in its application to our Australian
Forces. Without delaying the Committee longer, I intend to vote against the clause.
– I am sorry that the Minister for Defence (Senator Pearce) should have thought that I accused him of being either an Imperialist or a bad Australian. I do not agree with Senator Gardiner that the clause should be negatived. When the matter was previously before the Committee I was quite willing that the Army Act should be made applicable to our Australian Forces in time of war. But I objected to its application to them in time of peace. Anything, therefore, which I said by way of interjection whilst Senator Gardiner was speaking, and which was applicable to Senator Pearce, is equally applicable to myself. We are retaining the Army Act in its application to our Australian Forces in time of war because we anticipate that if ever we are at war again we shall be at war in conjunction with the British Empire, whose Forces will be governed by that Act. I do not object to that, nor was I seeking to cast any reflection upon the attitude of the Minister when I made the interjection to which he took exception.
– When the Committee rejected the application of the Army Act to our Australian Forces in time of peace, I understood that consequential amendments would be made in the Bill, and that practically all reference to the Army Act would be excluded.
– No. The Army Act still applies to our Forces in time of war. All consequential amendments are being made.
– Under existing legislation the Army Act still applies to our Australian Forces in time of war. That is the reason why I believed that all reference to the Army Act in the Bill would be eliminated consequent upon the rejection by this Committee of a provision under which that Act would have been applicable to our Forces in time of peace.
– The Defence Act modifies the application of the Army Act. In those modifications certain faults have been discovered, and this is one of them. The clause is intended to rectify a fault which has been discovered in the Army Act by means of a modification of the Defence Act in time of war.
– Still the position is not quite clear. The Army Act in time of war is already applicable to our Australian Forces.
– Not as a whole. It is modified by certain sections in our Defence Act.
– Then this clause seeks to further modify our Defence Act in order to facilitate the application of the Army Act to our Forces in time of war. Is that the position t
– I am satisfied with that explanation.
Clause agreed to.
Clause 56 agreed to.
Clause 57 (Forfeiture of pay, &c).
– Proposed new section H9a is intended to cover the cases of men who were discharged, whilst absent through desertion, by the Governor-General. It is also a necessary provision for the future. Proposed new section 11 9b is designed to cover the cases of men who, at the time of the armistice, were placed upon leave of absence, without pay, and who were not discharged for some time. These men were not given permission to engage in civilian occupations during their leave. The Government gave their cases full consideration and granted them every possible benefitBut it decided not to discharge them, because the armistice might have been of only a temporary duration. Hostilities might have been resumed, and, accordingly, these men were discharged only as if they were on leave without pay. Subsequently it was discovered that they might be able to claim pay. To avoid that contingency this provision is being inserted. Provision is also being made to cover the question of the pay of men who were allowed to return to their homes on account of sickness, &c, and who never returned to duty, but were discharged. The cases of men who were reduced in rank for inefficiency ot for offences are also covered by the clause where the reduction was irregular. There is a number of these cases - not a very great number - and as Senator Drake-Brockman pointed out earlier in the discussion, many of these irregular discharges were due to a lack- of knowledge of the Army Act and of the procedure to be followed. The man himself suffered no wrong in any- way, except that the technical requirements of the Army Act were not complied with. Any cases of hardship that may arise are left under the proposed section to the discretion of the Minister, but no hard and fast rule is laid down. Some men, for instance, were placed on leave of absence without pay, and they may have been unable to obtain employment by reason of their not possessing a discharge certificate. These cases can be dealt with, although we have not met any of them so far. Then there were the men who deserted in England, and did not report, although frequent advertisements were inserted in the newspapers. We had eventually, by order from the GovernorGeneral, to discharge them. Our Act makes no provision for it. Some of those men may come along-
– You said just now that this trouble was due to irregularities in the Army Act- Did you not’ mean the Defence Act?
– No; I meant irregularities in the administration of the Army Act overseas. These were faults of administration. Things which were quite justified and morally right were done, but were technically irregular because of our officers’ lack of knowledge of the Army Act. This is really a validating clause to deal with those cases.
Clause agreed to.
Clause 58 -
After section 123b of the principal Act the following sections are inserted in Fart X.: - “123*?. - (1) No person lawfully having in his possession or his power any book, document, paper or record relating to any matter under the control of the Department of the Navy or the Department of Defence or the Air Board, or relating to the defence of the Commonwealth or to the Defence Force or to any member of the Defence Force, shall be required by any Court to produce that book, document, paper or record to the Court without the consent of the Minister for the Navy or the Minister for Defence or the Minister for the time being administering the Air Defence Act 1021 or the Naval Secretary or the Secretary to the Department of Defence or some other prescribed person. “ (2) Where the consent required in pursuance of the last preceding sub-section is refused, no person failing or refusing to comply with the order of the Court as to such production shall be liable, in respect of that failure or refusal, to any process of the Court.” “ 123g. - (1) Any person who sells, and any merchant, trader, dealer, pawnbroker, or shopkeeper who buys, any article supplied or issued by any Red Cross Society or Red Cross organization, knowing it to have been so supplied or issued, shall be guilty of an offence. “ (2) Any person who buys or sells any article bearing a brand or mark indicating that it has been supplied or issued by a Red Cross Society or Red Cross organization, shall be deemed, in any proceedings for a breach of this section, to know that it has been so supplied or issued. “ (3) Any merchant, trader, dealer, pawnbroker or shopkeeper on whose behalf or at whose place of business any article as aforesaid is offered or exposed for sale or is sold, exchanged, traded in or disposed of contrary to this section, whether contrary to the instructions of the merchant, trader, dealer, pawnbroker or shopkeeper, or otherwise, shall be guilty of an offence.
Penalty: Twenty pounds.”
.- This clause in proposed new section 123f raises a rather interesting question. It is intended to prevent the Minister or departmental officers being required under subpoena to produce what are considered to be confidential public documents before Courts in litigation between private parties. For instance, the Department has been subpoenaed in a number of cases to produce the medical history sheets of returned soldiers, particularly in divorce cases. This has entailed the frequent employment of counsel, and the incurring of large expenditure which has not been recovered. A number of applications have been made to me, as Minister, by Courts for the production of papers, and I have been advised by the Crown Law authorities to follow the rule laid down in Great Britain, which is that a Minister or a Department is not entitled to refuse to produce a paper if the refusal would enable the law to be defeated, or is against the interests of public policy, or the proper interests of the people. It is obvious, however, that when the citizens of Australia enlist, as they did in ‘ the Australian Imperial Force, we should not use their enlistment to injure them by allowing some other person to get from our records - for instance, from the medical history that we may have of any man, and that we only obtained through his volunteering to fight for his country - information to his detriment or possible injury. I do not know of any case where a refusal has been made which would be detrimental to ‘the best public interests of the Commonwealth, but it is necessary in the interests of the soldiers themselves that we should have the power to refuse to produce documents in certain’ cases.
– Does that in any way protect the Minister? The clause says, “No person shall produce these documents without the authority of the Minister.” Is there still sufficient power for the Minister to refuse?
– Oh, yes, we have . power to do that.
The second proposed new section in the clause relates to the prevention of undesirable trading in Red Cross goods. That is a very necessary power, not only in war time, but in peace time, because there are still a number of soldiers in our hospitals, and we should have the right to protect the Red Cross Society by preventing trafficking in their goods. Unfortunately there are people mean enough to have trafficked in those goods during, the war. In one case I know of the store in which the goods were housed was broken into and a large quantity taken away. “We have good reason to believe - although it has been impossible to produce the necessary evidence to prove - that those goods were subsequently sold by people taking them round for sale.
– Do you think a penalty of £20 is enough for that offence ?
– I have no objection to raising it to £50, because that would be the maximum penalty. It is not anticipated, however, that this provision will be required to deal with anything more than pilfering.
.- I move -
That proposed new section 123p be left out.
– Do you not believe in the Minister having power over his documents?
– He has the power now,, and I do not agree with any enlargement of it. It has been held that where it is contrary to public policy to produce documents the Minister has ample power to refuse to do so.
– This is to prevent an officer producing them without the Minister’s consent.
– I presume the officers are all under the Minister’s direction, and he can interfere.
– Before the Minister can interfere, the damage may be done. There has been one case in which an officer produced in Court a document without the consent of the Minister.
– That is a matter of internal administration. It should be understood that no officer may produce any such document without the Minister’s express consent.
– Can an officer refuse to obey a subpoena of the Court?
– If the Minister interfered and represented to the Court that the production of a document was contrary to public policy, the Court would accept his assurance right away.
– If the clause is passed, it may save the expense of issuing subpoenas.
Senator- Pearce- We have to engage counsel to appear in every case where we are subpoenaed.
– In every proper case, the Minister ought to appear and obtain the consent of the Court to refuse to produce the document. I am decidedly against enlarging the Minister’s . powers in the way proposed. All sorts of questions may arise hereafter, where it may be absolutely essential, in order to establish an officer’s character, that he should have the right to ask for the production of .the official records of his conduct.
– It may be the other way round in a good. many, cases.
– It may; but we ought to stand by the common law on the subject, which has been established by long usage in Great Britain, where, I believe, no such power as we are now asked to give has been taken.
– We arc on dangerous ground. In a case arising in a centre_ some distance from Melbourne: the’ prompt production of a document may be of the greatest advantage to the Court. I am not referring to secret or valuable documents which would give away information that should not be given to the public. I take it that, beyond everything else, the Government and Parliament, should take very fine care to keep justice pure. No document which is required to enable justice to be done should be withheld from a properly-constituted Court. It may be taken for granted that if a document is asked for, and counsel for one. side or the other thinks its production will injure his case, he will object; but. if the immediate production of a document by the Defence Department will help to put the truth more clearly before a Court, I can see no reason for delaying, it. Justice delayed is justice denied. Already in the great and important city of Sydney we are suffering fearfully throu’gh having to come to the Minister in Melbourne in connexion with the most trivial things, and by this clause it is possible that our Courts of justice in Sydney will be compelled to send to Melbourne for evidence which is essential to accomplish the ends of justice. If Senator Pearce were asked to attend a Court inSydney, he might not consider himself subject to the laws of the State of New South Wales. The production’ of some document may be essential to prove or disprove an allegation against the reputation of a soldier. The production of his own certificate will be the very thing that is required to prove that the allegation against him is untrue.
– If the soldier consents, there will never be a refusal. If the soldier asks for -it, it will be produced at once.
– If the document would put the truth before a Court, why should there be any objection! I do not see why the representatives of the Defence Department should be placed in a different position from any other member of the community in connexion with the production of documents, particularly when the Court considers that they are necessary to assist them in fully considering the case before it.
– We have no right to medically examine- people in the interests of public morals to see if they are fit for military service.
– There is quite a lot of unofficial information that should not be supplied to any one.
– That could very well be done, but I am addressing my remarks to the Minister for Defence (Senator Pearce), who sent - if I may accuse the Minister for appointing a
Royal Commission - one of his departmental officers to examine my banking account in order to ascertain exactly how it stood. To the production of my account in Court I have no objection ; but I am opposed to any system which allows a spy to look into one’s private matters, because it is a grave inroad on our liberty.
– Did the honorable senator say that I sent an officer?
– The Royal Commission appointed by the Minister did.
– A Royal Commission - if the honorable senator is referring to the Royal Commission on Naval and Military matters - was appointed by the. Government, but we had no knowledge of what it was doing.
– The facts were that I attended to give evidence, and the first statement I heard when called by the Court was one by Mr. Justice Starke, who said, “You have given permission for your bank account to be examined, and there is therefore no occasion for you to give evidence.” I replied that if my account had been examined it was the first. I had heard of it. I subsequently went to the bank and learned that a man named Barton had examined my account.
– He was acting under instructions from the Royal Commission.
– I believe that papers should be produced if their presentation in a Court will be the means of justice .being done; but I do not see that there is any reason why the Department should have the right to refuse the production of ordinary official documents.
– The honorable senator would object to his private documents being produced in Court, and soldiers object on similar grounds.
-What I objected to was a spy being sent to examine my account without any notification being sent to me. If my account had. been produced in Court and I had had the opportunity of cross-examining an officer on any report submitted I would not object, but I arn strongly opposed to the Defence Department having the right to refuse to produce papers in their possession when the presentation of such documents may be the means of an individual receiving justice.
– Every Minister of State is in the same position.
– But if the papers are required the Minister has the right to refuse. A Minister should have the right to refuse when the disclosure of the information contained in the documents would be dangerous to the Commonwealth.
– Who decides that?
– I am quite prepared to leave the decision in the hands > of the Judges, who would never agree to State secrets being disclosed. There may be documents containing information which if disclosed would enable other nations to ascertain exactly what was transpiring on very important issues. The principle embodied in the proposal is objectionable, and I intend to support Senator Elliott in the amendment he has moved, because I believe there is more in the clause than meets the eye. The production of documents may be the means of helping counsel in conducting- cases, but we are going somewhat out of the well beaten track if we allow the officers of the Defence Department to enjoy privileges which are not possessed by other members of the community.
– I disagree’ with Senator Gardiner and Senator Elliott. ‘I think we have to look at this matter from the stand-point of constitutional rights, and consider the constitutional position of the Minister. We have to recognise that the Minister for Defence (Senator Pearce) is a Minister of State, and from time immemorial, according to the common law of England, Ministers have had judicial discretion in refusing to produce public documents in a Court of justice if they consider such a course advisable. The Minister has courteously handed me Halsbury’s Laws of England, which states - <
State papers and official documents and. thecommunications between Governments and officers are privileged’ from disclosure.
That is a well-established principle under the common law of England, and has existed from time immemorial. We are merely safeguarding a principle which has been handed down to us by our forefathers.
– Does not this enlarge it?
– No. I understand that this clause is not for the protection of the Minister, but for his officers, and to prevent them disclosing documents without his knowledge. We have had the same experience in South Australia in connexion with our Boards of Health, where the Secretary of a big Department has refused, on the same grounds, to disclose information or evidence to a Court of justice, and surely in connexion with the Defence Department we should see that the right of the Minister is safeguarded. I trust the Committee will support the clause.
– It was my intention to make a similar speech to that delivered by Senator Benny; but I was not going to draw quite the same conclusion. I agree that the common law, as handed down to us by our forefathers, is excellent, and provides the proper and necessary protection for the custody and non-disclosure of documents which should be kept private; but I cannot see any necessity for an extension of the power which this clause contemplates. Experience of the administration of the common law in regard to this matter in, the past has not revealed any necessity, either in Great Britain or in any of her Dominions, for the extension contemplated. As there is protection at present, why should we extend it ‘( It is really carrying the principle a little farther, but to just what extent I am not prepared to say.
– Wo have had to brief counsel every time we were called upon to defend our refusal to produce a document. We want to save money.
– The amendment would secure the votes of the members of the legal fraternity present.
– BROCKMAN. - That is not so. The small amount of money involved is hardly worth considering, and I might incidentally mention for the benefit of those who have made somewhat facetious interjections that no member of Parliament can be briefed by the Federal Government or any of its Departments. For the reasons given, it is not my intention to, vote for the clause. I do not see that there is any necessity for it, because if we adopt it we are departing from the old-established common law. In this instance I am in accord’ with Senator Gardiner, and also with the views expressed by Senator Elliott. Although it may be somewhat irrelevant, I desire to say that, as Senator Gardiner is at present perusing the evening newspaper, I am hoping that we shall be able to dispose of seven or eight clauses as we did yesterday when he was similarly engaged.
– As Senator DrakeBrockman has facetiously referred to my actions in this chamber I desire to say that I have a very great capacity for listening to what other people are saying, although I may be reading. I am able to concentrate one portion of my, intellect upon an honorable senator’s speech, and at the same time to follow something that may be of greater importance in an evening newspaper. I can prove it by saying that while Senator Drake-Brockman was speaking I was following his argument and reading with pleasure that the Austalian cricketers, after a very bad start, had compiled a total of 263 runs, of which number Gregory had contributed 104 not out.
– ‘Order! The statement of the honorable senator may be very interesting; but I cannot allow the performance of the Australian .cricketers in England to be referred to during a discussion on a Defence Bill.
– You will recall, Mr. Chairman, that Senator DrakeBrockman said, at the conclusion of his remarks, that what he had to say was somewhat irrelevant, and, as you permitted him to attack me, I think, in common fairness, you should allow me to reply
– Senator DrakeBrockman’s concluding remarks were made so hurriedly that I did not have an opportunity of intervening before he resumed his seat. The honorable senator evidently anticipated objection by saying that his statement was irrelevant.
– The practice of reading newspapers has been- adopted by Mr. President, and also by Ministers, and although I was reading when Senator Drake-Brockman was speaking, I was sufficiently alert to interject that the amendment would secure the vote of the legal fraternity. The honorable senator immediately replied that- that was not so,, because the Government had not the power to brief members of Parliament. Although the Government may not have the power, members of the legal fraternity in this Chamber are endeavouring to protect the interests of that very strong and splendid union of which they are members. The honorable senator also suggested that there was an opportunity of hurrying the Bill through while I was reading; but I think he will now realize that it is better to let sleeping dogs lie.
– But I am supporting the honorable senator.
– Then I must be wrong. I do not want, power to compel the production of secret documents. It is clear that this clause will place the Minister in a position superior to that of the Law Courts. I object to the principle.
. -I have not been converted either by Senator Benny or the Minister (Senator Pearce). Under the Army Act all sorts of confidential reports are prepared concerning officers, but the latter are not allowed to see them. The abuse of this system .is recognised everywhere, and it seems to me that if we allow this clause to go we shall pave the way for the adoption of a similar custom in connexion with our Citizen Forces, because the Minister would be in a position to arbitrarily refuse the production of any report in connexion with which an officer might desire to bring an action to assert what he considered to be Ids rights.
– There is a regulation No. 266, which provides that all adverse reports must be shown. to the officer concerned, and initialed by him.
– But under this clause the Minister will have authority to refuse the production of documents, notwithstanding that such report may be on a man’s file. I cannot see the need for it, because the Minister has ample powers under the common law to refuse the production of public documents where it is for the public good.
– I do not see the need for. the provision contained in sub-clause 1 of proposed .new sub-section 123f. The position is as stated by Senator Elliott. The Court does not insist upon the production of documents if the Minister certifies that their production would be against the public interest. .
– The Minister,, under the common law, has power to refuse the production of documents. This clause is to protect the officer.
– Some time ago an action was instituted in the Supreme Court of Victoria by an ex-member of the Australian Imperial Force against a newspaper for libel. He claimed that in his. capacity as a soldier he had been libelled, and that for the proper conduct of his case it was necessary that certain documents relating to his conduct in the Australian Imperial Force should be produced. If I remember aright, it was stated to the Court that the documents could not be produced, because their production would be against the public interests. I do not know whether they would have helped his case or not, although he and his counsel claimed that their production would have materially assisted. I believe that the papers were not produced because an officer from the Defence Department declared that the Minister had certified that to produce them would not be for the public good. I’ can very well understand that a Minister, especially the Minister for Defence, with- a large number of important matters to deal with, involving questions of policy and administration, would have very little opportunity to give personal attention to this question of producing documents. It is quite conceivable that some senior officer would “advise that the papers be not produced, in the public’ interests, and the Minister, relying upon the- loyalty of his officer, would act accordingly, and say - “ No: I decline to produce the documents, on the ground that to do so would he adverse to the public interest.” Although the Minister would not be to blame personally, he would be responsible officially for any such refusal, and I oan well understand that the interests of justice might not be served by the nonproduction of documents asked for. If this clause is agreed to it will be necessary to get the consent of the Minister before any document is produced in the Court, and as the Minister in the multitudinous details of general administration and policy would not have time, personally, to attend to an application, he would accept the advice of his officers and refuse, or consent, as the case may be. The public interest is very ‘well served by the present: methods of administration of justice in regard to. the production . of public documents. . Anybody connected with the legal profession will agree that the Departments are amply protected at present. Under this clause no public documents relating to a Department will in any circumstances be produced unless the prior consent of the Minister has been obtained. That, I think, would be putting too much upon the Minister. Senator Duncan. - “What would be the position, if the Minister was personally affected.
– The Minister has to exercise, his consent judicially.
– I should say that if a Minister were a party to the litigation he might, under this clause, be induced to block the production of certain documents which might tell against him. But this, of course, is an extreme supposition. In the case to which I have already ‘referred, the newspaper- which was alleged to have libelled an ex-member of the Australian Imperial Force relied ‘ upon justification., and endeavoured to prove that their comment had been fair and justified by the circumstances. It was stated that if certain documents were produced by the Defence Department itwould be shown that the alleged facts were not’ facts at all. But the documents were not produced. That is the present position, of the law. I do not know whether we need strengthen or buttress it. I think it would be putting upon the Minister an unnecessary obligation to ask him, in every instance’ where documents are called for either to consent to or refuse their production.’ At present the Minister has to state if, in his opinion, it would be adverse tol the public interests to produce them. If such a statement is made to the Court, I do not know that it is necessary for the Minister even to appear; the Court does not enforce their production.
.- The amendment does not alter the existing law which has been stated by Senator Benny, but it is intended to save the Department from formally resisting every application for the production of papers, and from briefing counsel. I appreciate Senator Keating’s solicitude for the Minister, but his point of view does not relieve the Minister in any way, because the Minister has to decide- if counsel shall appearin Court to object to -the production of any documents asked for.
-That is not necessary.
– Yes, it is. An application is made, and a subpoena is issued to some officer calling for the production of certain documents. The Minister then has to decide whether he shall, or “shall not, object to their production. If he objects he has to brief counsel to appear in the Court and say that the Minister objects, on the ground of public policy, to the production of the’ papers asked for. Under this clause that course would not. be necessary, because the Court would have to get the consent of the Minister for the production of the documents asked for. It would not be necessary to brief counsel to appear to object to the production ‘of papers in connexion with all these divorce cases which really do not concern the Department at all. *I can assure honorable senators that the great majority of the applications for the production of papers’ have been for the medical history of soldiers in connexion with divorce cases. The trouble. is that one refusal is not sufficient, and every time an application is made the Department has to brief a solicitor to appear in court.
– An officer of the Department might be sent to the court. .
– I do not know whether the court would “ see “ him. I am informed that- the Department must be represented. The amendment proposed will not” alter the procedure, because the Minister will still have to decide whether he will, or will not give his consent. I do not agree with Senator Keating, that any Minister would regard this as a matter of no consequence. I consider that it is one of the most responsible things which the Minister has to decide. If in connexion with a law case a document is asked for, I think that the Minister has to take a great responsibility in saying that he will not permit that document to be produced. I approach the consideration of such applications with very great care. I inform myself fully as to the circumstances before I refuse to produce documents that are asked for by a .court. I consider that such refusal must he justified by very strong reasons. As to the class, of case affecting medical histories, I have no doubt as to how they should be dealt with, and there is a Ministerial minute in the’ Department, which is regarded as a rule, and is acted upon accordingly, refusing applications for medical histories.. One part of the clause is intended to prevent officers acting is this connexion without the Minister’s consent, and that certainly should be provided for.
– A point thathas been overlooked is that, under the clause, in future no document can be produced without the consent of the Minister, and he need give no reason for his refusal. In the past, he has been required to say that he refuses to produce a document because to do so would be against public policy. Ministers are public men, in whom the public have confidence,and when a Minister, in refusing to produce a document, gives as the reason for his refusal that to produce it would be against public policy, no further inquiry is made. But under this clause, in future the Minister will be given the power to refuse to produce a d ocument without giving any reason, although to produce it might not be against public policy. I strongly urge upon honorable senators that this power should be rejected.
Question - That the proposed new section 123f be left out - put. The Committee divided.
Majority . . 10
Question so resolved in the negative.
.- I move -
That in the proposed new section 123g, after the word “organization” (first occurring), the words “or other person, for the use of any troops”, be inserted.
My desire is to enlarge the ambit of the proposed section, and make it an. offence to make away with articles supplied for the use of troops by persons other than RedCross societies or organizations. I do not think that the Minister for Defence can raise any objection to the amendment.
. -I am afraid thatif the amendment were agreed to it would be impossible to administer the proposed section. For instance, a man might purchase a pipe or tobacco from a canteen, and if the amendment were agreed to he would not be able to sell the articles again.
– A canteen is like an ordinary organization.
– Still, certain funds are supplied to originate a canteen.
– Would the section not cover such things as trench comforts funds and battalion funds’?
– The Red Cross is a permanent organization: Trench comforts funds were organized during the war. An attempt is being made to continue them for the Citizen Forces, but I am very doubtful whether that can be done. I am afraid that it would be found so difficult to administer the amendment that it would become a dead letter. I doubt whether it would accomplish anything, and it might make it an offence to do certain things which should hot be regarded as offences. If a man gets an article from a canteen, what objection can there be to his selling it afterwards?
– That article would not be supplied by any person.
– It would be supplied in the first instance to the canteen. The honorable senator will remember that canteens were started in Australia in the first place by a grant from the Treasury. I shall not oppose the amendment, but. will have it examined to see whether it is necessary that it should be reconsidered, in which case the clause can be recommitted.
– I might suggest to the Minister and to Senator Elliott that if the words “or other prescribedorganizations or persons “ were used, that would meet what Senator Elliott desires, and would not be so objectionable to the Minister.
– That might be better.
– In the event of war arising, an organization like the Comforts Fund might be formed, and could be specifically mentioned by regulation. An individual might supply articles on a large scale for the use of troops.
– He would probably do so through an organization.
– A man like Ford, of America, might conceive that he should devote part of his wealth to the supply of a large number of articles for the use of troops, and that case could be covered by the clause. I suggest that the insertion of the words “ or other prescribed organization or person “ would probably meet the case.
– No goods could reach the Front unless they went through the military organization.
.- The motive which is actuating Senator Elliott springs from a desire to prevent any goods which have been supplied by an organization or person for free distribution amongst the troops being disposed of for a monetary consideration by any individual.
– That is precisely my object.
– It is a very desirable object, but it is one which will not be achieved by the honorable senator’s amendment. I recognise that offhand it is rather difficult to draft an amendment which will be of an all-embracing character, and consequently I suggest that the consideration of the clause be postponed with a view to it being redrafted.
– If we insert the words that have been suggested by Senator Keating we shall then be in a position to frame regulations to meet the case.
– But those regulations will not meet the case of goods which have been supplied for free distribution. The Minister himself has stated that if Senator Elliott’s amendment be carried the provisions supplied through the Canteen Fund will be affected, because they are not distributed free.
– If Senator Keating’s suggestion be adopted we should not prescribe the canteen as an organization..
.- If the Minister is satisfied that under regulations he can make the word “ organization “ cover individuals, I have no objection to the adoption of Senator Heating’s suggestion. By leave, I withdraw my amendment, and move -
That in the proposed new section 123g after the word “organization” the words “or other prescribed organization or person.”
Amendment agreed to.
Proposed new section 123g consequentially amended.
– As I understand it is the general desire of the Committee that the penalty attaching to the proposed new sections shall be increased, I move -
That the word “Twenty” be left out with a view to insert in lieu thereof the word “Fifty.”
Amendment agreed to.
– I move -
That at the end of the clause the following new section be inserted : - 123h.- (1) If an officer of the Military Forces thinks that he has been wronged and, on due application, does not receive the redress to which ho considers he is entitled, he may complain through the proper channel to the Military Board, or, if the Military Board is not at the time constituted, to the GeneralOfficer commanding the Australian Military Forces in which he is serving.
The Military Board or the General Officer, as the- case may he, shall,without delay, investigate the complaint.
If the officer complaining so requires, the Military Board or General Officer, as the case may be, shall forward the complaint to the Minister for submission to the GovemorGeneral together with a report on the subjectmatter of the complaint.
Any directions given by the GovernorGeneral in relation to the complaint shall be carried into effect without delay.
(a) If a soldier thinks that he has been wronged in any matter by any officer other than his captain, or by any soldier, he may complain to his captain ; and
if he thinks that he has been wronged by his captain, either in respect of his complaint not being redressed or in respect of any other matter, he may complain to his commanding officer; and
if he thinks that he has been wronged by his commanding officer, either in respect of his complaint not being redressed or in respect of any other matter, he may complain to the general or other superior officer commanding the command, district or station where for the time being the soldier is serving; and
if he thinks that he has been wronged by the general or other superior officer specified in the last preceding paragraph either in respect of his complaint not being redressed or in respect of any other matter, he may, except in time of war, complain to the Military Board.
Any complaint made in pursuance of the last preceding sub-section shall be made through the proper channel.
Where, in pursuance of sub-section (5) of this section, a complaint is made to the Military Board or to an officer, the Military Board or the officer,as the case may be, shall cause the complaint to be investigated, and, if satisfied with the justice of the complaint, shall take such steps as are necessary for giving, to the soldier complaining, full redress in respect of the subject-matter of the complaint.
In this section ‘ captain ‘ means an officer of whatever rank commanding a squadron, battery, company or equivalent command.
I have brought forward this proposal in response to the suggestion of certain honorable senators that the provisions which are in the Army Act and which apply in time of war and which in time of peace are contained in our own regulations, should be embodied in the Statute itself. A promise was made that that course would be followed, and these proposals give effect to that promise. The proposed new section goes farther and meets the case put by Senator Drake-Brockman, who pointed out that as the officer appointed to a divisional command is appointed on the recommendation of the. Military Board, an officer’s appeal under the existing regulations can go only to that Board, and that therefore it is really an appeal from Caesar to Caesar. The honorable senator suggested that an officer should have a right of appeal to the Governor-General, and that is provided for in the proposed new section. It will also give an officer similar power to obtain redress to that which is provided in the Army Act, bub for the Army Council it substitutes the Military Board or the General Officer Commanding of the Australian Forces; for the Secretary of State it substitutes the Minister : and for His Majesty it substitutes the. Governor-General. It is simi lar to the Australian Military Regulations, but it goes farther by providing for an appeal by an officer to the GovernorGeneral, both in time of peace and in time of war, whereas the present regulations provide that an appeal in time of peace may go only as far as the Military Board. “Under the proposed new section a soldier will have a right of appeal to a different authority from that which has caused the thing to be done of which he complains. In other words, if a wrong has been done by his captain he may appeal to the captain’s next superior officer, and so on, right up to the General Officer Commanding. In the British Army the appeal by a soldier does not go to the King. This, however, is not a class distinction as between the officer and the soldier. The distinction is made because in the case of an officer he would be appealing for redress from the act of his superior officer to that superior officer. A further reference to the King is therefore given in the case of an officer in order that the civil authority may intervene between the officer of whom complaint is made and the officer who makes the complaint. Under the Army Act the right of appeal is up to the General Officer Commanding: in the case of the soldier. The proposals I have submitted provide for a right of appeal in peace time from the General Officer Commanding to the Military Board. In the case of an officer, however, the appeal is to the GovernorGeneral, who, in some cases, is the only authority through whom redress can be obtained. Senator Elliott has given notice of a number of amendments upon this proposed new section. I have not had time to study their effect, but I gather that the last portion of them really relates to a different subject. I would therefore suggest to him that it would be more convenient for the Committee to discuss these two matters separately. The first question has reference to the redress of wrongs. The other question relates to a civil remedy for injustices done. That, of course, will be supplementary to any question involving the redress of wrongs, and I suggest that it need not be debated upon these proposals. The provisions dealing with the redress of wrongs which are contained in the proposed new section, are more liberal than any which have hitherto existed, and the question which we have to determine is whether or not they are adequate. After that matter has been disposed of, we can proceed to decide separately the question of whether in respect of wrongs done, there shall be civil redress in addition.
.- The Minister (Senator Pearce) , has made a very fair attempt to meet the wishes of the Committee as expressed when the subject was previously discussed, but it is not quite clear that his amendment gives the right of appeal on anything except a wrong done by an officer. A soldier may be labouringunder a grievance or wrong which cannot be sheeted home to any one in particular. Still, it may be a real injustice which ought to be redressed, and which would be redressed if he had an opportunity to state his case fully. Does not the opening sentence of the amendment limit the appeal to the case of a wrong or injury done by some one person ?
– The soldier has the right to take his complaint to his officer in the first place, no matter what it may be. If his officer does not redress it, then he has been wronged, and I should say that in that case he has the right of appeal.
– That struck me as quite a debatable question when I heard the amendment read.
– Paragraph c of proposed new sub-section 4 makes that quite clear.
– Perhaps I shall be in a better position to discuss the matter if I take a little time to read the Minister’s amendment carefully.
.- The amendments which I propose to move on the Minister’s amendment are as follows: - I shall first move to strike out proposed new sub-sections 2, 3, and 4. That will leave sub-section 1 as it stands, which will meet the case of officers when we are at war. Proposed new sub-section . 5 will then become sub-section 2, but in paragraph d of (that sub-section I shall move to leave out the words “except in time of war.” That will leave it open to the soldier to complain whether in peace or in war. I shall then move to add, after the words “ Military Board,” the words or if the Military Board is not at the time constituted, to the General Officer Commanding the Australian Military Forces in which the soldier is serving.” I shall then move to leave out proposed new subsections 6 and 7, and to insert a new subsection to the following effect: -
The Military Board and every officer to whom complaint is made under this section, if it is within its or his power to do so, shall cause the complaint to he investigated, and if it appears to it or him that the officer or soldier has suffered a wrong, shall cause the wrong to be fully redressed, if full redress is within its or his power, or if investigation or full redress is not within its or his power, shall submit the complaint to superior authority in order that the complaint may be investigated or full redress made.
I shall then propose a new sub-section as follows-:-
If any officer or soldier is dissatisfied with the decision of the Military Board or the General Officer Commanding the Australian Military Forces in which the officer or soldier is serving, he may complain to the GovernorGeneral.
Proposed new sub-section 8 of the Minister’s amendment will then come in.
– Have your amendments been circulated?
– They are, in effect, the same as parts of the proposed new section 85a which I have circulated, but as I have to move them as amendments to the Minister’s amendment, I have had to alter the wording somewhat, and so far I have not had time to get more than a typed copy. I am advised by the draftsman, however, that they are, in effect, the same as the Committee has before it in print.
– Except that at this stage the honorable senator is not moving the latter part regarding the civil remedy.
– I am not moving that part at this moment. Honorable senators who have familiarized themselves with the Army Act will see that my amendments will introduce into our Defence Act the most desirable features of the Army Act, giving full power for the redress of wrongs. They go somewhat beyond the Army Act, seeing that they give to the soldier the same power as they give tohis officerto appealtothe highestCourt in the land, which is Parliament. I -was led to make that alteration because Senator Foster was influenced to vote against a previous amendment by reason of the fact thatI hadnot provided similar rights for the soldier and officer. In this case I have in a democratic way given similar rights to both.
– Is not that also provided for in the Minister’s amendment?
– Not in precisely the same way.. I prefer my own amendment as giving greater power to appeal. Under the Minister’s amendment a soldier, I think, can go only as high as the Military Board or the General Officer -Commanding.
– You propose to give him the right to go -to the GovernorGeneral ?
– Yes, so as ,to make no class distinction whatever. I do not propose now to go into details regarding other proposals of mine which provide certain pains and penalties on officers .who disregard the provisions of this part of the Act.
– That is quite a different question.
– Yes. For the present we can concentrate on the question of whether or not my amendments are superior to that proposed by the Minister.
– I must now ask the honorable senator to confine himself to his first amendment, in order that I may regularize the discussion. Is it the pleasure of the Committee that the honorable senator have leave to move, as one motion, the omission of sub-sections 2, 3, and 4 of the Minister’s amendment ? If that is done, those who desire to retain any one or two of those three sub-sections will be debarred from doing so. If there is any objection, I shall simply put the question that subsection 2 be left out.
– I think it desirable that the proposed new sub-sections be dealt with seriatim.
– Perhaps we can take a test vote on proposed new sub-section 2.
– If the Minister agrees to an amendment in the first portion of the clause it will prevent honorable senators from moving amendments subsequently. Is the Minister satisfied with the wording of sub-clause 1 of the proposed new section 123h? Does he not consider that that might be more clearly stated? Evidently the draftsman had in his mind that an officer would have the right to appeal if he considered that he had been wronged. The view I hold is that the proposed new section is so worded that it seems to deal only with actual wrong.
– If a person “thinks” he has been wronged, that constitutes a prima facie’ case.
– If the Minister is satisfied that the wording is sufficiently clear, I shall not move an amendment, but I desire to point out that there may be grievances under the Act which are not wrongs. A soldier may approach an officer to redress certain grievances under which he considers he is suffering, and may be informed by the officer that there is no .grievance, and that he is merely administering the Act.
– I think it is wide enough, when we provide that if an officer “thinks” -he is wronged.
– I want the Minister to be sure that what he is doing is right, because I believe the addition or alteration of a word or two would make it perfectly clear, aud enable an officer or man who had a grievance to obtain redress.
– If he “thinks” he has been wronged he can appeal.
– To me it appears that the wording is not sufficiently clear, and I believe that in- the first portion of the clause some alteration in the form of expression would enable it to be more correctly interpreted later. If the Minister is satisfied with it in its present form, I shall allow it to pass, but not without protest.
– I cannot think of any word at the moment that would make the proposed sub-section clearer than it is, because if an officer thinks he is wronged, it does not matter how, or by whom, ‘or whether he has any rights under the Act - the fact that he thinks he has been wronged gives him the right to appeal. The wording is as wide as we can possibly make it.
Senator ELLIOTT .(Victoria) £5.55].- Senator Gardiner -seems .to have some doubt as to whether the wording is .sufficiently wide. I ‘ originated the discussion on this particular subject, and I considered it most carefully in conjunction with the provisions of the ‘Army Act. I’ do not think we can go wrong in adhering to the words in the proposed new clause. If a man thinks - he need not have any greater foundation than that - that he is wronged, he can have his case heard.
– Does the honorable senator think that a man would have the right to say that he had been wronged if the regulations interfered with his, position ?
– Yes, if he thought he had been wronged. It has been suggested that the proposed new subsections should be taken seriatim, and my object in moving to eliminate sub-clause 2 is merely for the purpose of placing the soldier and officer on the same basis.
– The honorable senator will realize that in a Committee such as this opinions vary. Some honorable senators may wish to retain one or more of the proposed new sub-clauses, and I therefore ask Senator Elliott, if he so desires, to formally move that sub-clause 2 be omitted - .
– I move-
That sub-section 2 of tlie proposed new section be left out.
I do so in deference to the opinions expressed during a previous discussion that in this matter officers and men should have similar treatment. I have no objection to the sub-clause in relation to officers, but wish to provide that officers and soldiers who are dealt with in the following sub-clauses shall be in a similar position. I can assure honorable senators that the men are better provided for under my proposal than under that of tho Minister. When I first gave notice of certain amendments, the Minister had not made any provision for the redress of wrongs except by regulations, which, for various reasons, I considered ineffective. I came to the conclusion that, in this instance, we should follow the British Army Act, and have it in black and white, and not in regulations which could be varied from time to time by the authorities. I am merely moving in this direction with the idea of providing that soldiers and officers shall start in the same place and end by appealing to the Governor-General if necessary.
.- The amendment moved by Senator Elliott places members of the Committee in a somewhat peculiar position. The amend.ments of which the honorable senator has given notice are numerous, and embrace so many more details on the lines of the proposal submitted by the Minister for Defence (Senator Pearce), that one is somewhat fearful that in deleting a portion of the Minister’s amendment, one may interfere with its passage. I do not know whether Senator Elliott’s amendment is in order, but he has not put the case sufficiently clearly to demonstrate why - with the exception of one point, that the soldier and officer should have equal finality of appeal- we should go any farther than the Minister’s proposal. In my opinion, the proposed new section provides something which has not been in existence even by regulation.
– It relates to officers.
– From my point of view, it relates to soldiers.
– The sub-clause I have moved to omit does not relate to soldiers.
– The soldier already hae four Courts of appeal.
– I am dealing with the Minister’s proposal under which the soldier, can appeal to his captain, colonel, brigadier, general officer commanding, and eventually to the Military Board.
– Except in time of war.
– The General Officer Commanding takes the place of the Military Board in time of war. Senator FOSTER. - If our men were fighting abroad, they should be able to appeal from the General Officer Commanding, or if in Australia, to the Military Board. Some of the officers with whom I came in contact when in the ranks were a pretty “ crook “ lot, but I think the Minister’s provision is sufficiently wide, as there are various channels through which a man can appeal. The complaint made by Senator Elliott was, I believe, that the officers in appealing to the Military Board were really appealing from Caesar to Caesar, and that we do not go beyond that in this amendment. . Senator Elliott informs us that to get beyond the Military Board to the Governor-General political influence is necessary. An appeal to the Governor-General really . means to the Minister in charge.
– It means an appeal to Cabinet.
– Cabinet usually adopts the recommendation of the Minister controlling the Department.
– It really means the Minister concerned.
SenatorFOSTER. - Yes, and the Minister must be guided to some extent by the recommendations of the Military Board. He might consider it his duty to give consideration to a complaint in the case of a man who held the rank of the honorable senator in the Australian Imperial Force. But the position as stated by Senator Elliott the other day was, I think, altogether different. I thought his idea was to ignore the Military Board altogether.
– I said that you must go up through the Board.
– I take it that the honorable senator means through the proper channels. It is rather difficult to understand just where Senator Elliott’s series of amendments will take us. At present we must confine our attention to the point at issue. I fail to see what more the honorable senator could hope to accomplish than the Minister expects to achieve. The soldier, with four different courts of appeal available to him, is in rather a different position from an officer holding Senator Elliott’s rank. In his case there would be appeal from the General Officer Commanding to the Military Board and the Governor-General. With my knowledge of the men in the ranks, I am afraid that many men will be inclined to cause any amount of trouble on all sorts of decisions if they have an opportunity of appealing to different authorities right up to the GovernorGeneral.
– Did you have any “ bush lawyers” in the ranks ?
– Yes. The men thought I was something of a “bush lawyer” myself.
– The honorable senator will see that I have made provision that consideration of frivolous complaints may be postponed until the end of the war.
– I think you would get a lot of frivolous complaints, for, while I have every sympathy for the man with a genuine complaint, the man who has everyreason to expect that his wrongs will be righted, still I feel sure that a great many frivolous complaints, not worth while bringing back to Australia for the consideration of the Governor-
General and the Minister for Defence, will be raised. I would also like to point out that, even under this amendment, it would be necessary to frame regulations setting out the complaints in respect of which no appeal would lie, and in respect of which there should be no suspension of sentence. Otherwise you are going to land the Defence Department in a lot of trouble. The authorities will not know where they are. For. instance, it would be a simple matter for a man sentenced to detention to say, “I am appealing against the sentence, and until my appeal is dealt with by the Governor-General I maintain that you must not keep me in quod.’ “ It would appear, therefore, that regulations should be framed providing that no appeals should be allowed for the purpose of evading punishment lawfully awarded by the Court.
– Honorable senators need not concern themselves . very much about the drafting of the amendments submitted by Senator Elliott. They have been drafted by the Government draftsman, who has been dealing with the Bill, and, therefore, they will accomplish what the honorable senator has in view.
– We have not copies of the amendments.
– The wording does not matter very much. There is only one principle at stake of any importance. The difference between Senator Elliott’s amendments and mine is just this: In time of war an appeal by a soldier would be dealt with by the General Officer Commanding, and in time of peace by the Military Board, whereas an appeal by an officer must go to the Governor-General in time of peace or war. Senator Foster has already pointed out that the soldier has really four courts of appeal. He appeals to his colonel for redress of what he may consider to be a wrong done him ; then to the brigadier, and to the general or the superior officer commanding the Army, and from him to the Military Board. At least three of these courts of appeal would have no direct connexion with the soldier’s unit, and, therefore, there could be no personal feeling in the matter at all. The courts would be quite disinterested, and not disposed to cover up any injustice that might have been done in the smaller unit. In the case of an officer, on the other hand, he could appeal to his superior officer, who might be the General Officer Commanding, as in General Elliott’s case, and then to the GovernorGeneral. A senior officerwould have only two courts of appeal, but an officer placed in General Elliott’s position, appealing to General Birdwood as the General Officer Commanding, and then to the Governor-General, if he still thought himself wronged, would have only one court of appeal. In the case of a. soldier who enlists, nothing arising out of his enlistment can constitute a wrong. There can be no question of supersession. If qualified he is appointed to a commission, and then is selected from a number who are all equally competent, or are presumed to be equally competent, to a position of command. Honorable senators can see the possibilities of injustice at this stage. Supersession is infinitely greater in the case of an officer than in the case of a man, because an officer may be wronged by the opinion of the officer commanding who makes the selection. Therefore, there are a variety of reasons why an appeal by an officer to the Governor-General should be allowed without conceding the same privilege to a soldier. Their positions are not analogous. Really, so far as this amendment is concerned, the point which honorable senators are asked to decide between Senator Elliott’s amendment and mine is as to whether the soldier should also have the right of appeal to the GovernorGeneral.
– That is the only point, really.
– The later amendmentsraise other issues. I ask the Committee hot to accept Senator Elliott’s amendment, because in practice it would so clog the wheels of administration that no Minister could possibly find time to personally investigate the large number of cases that would come before him, in time of war especially. This matter came before me rather prominently when I was in England during the time of demobilization. While in London I got a request from a soldier who wished to state his grievance, in the belief that I was in London for the purpose of inquiring into grievances. I listened to the man, and took a note of what he said. He left the room, and subsequently I left also, but by another door, and I happened to pass down a corridor in which he was standing in conversation with another soldier. They were talking loudly, so I could not help overhearing the conversation. The other man said to him, “ Hallo, Bill. I remember you were down seeing General Monash the other day.” The other man replied, “Yes,” and his companion said, “Did you get that story into Monash?” “Yes,” said the man who had seen me, and then his friend asked, “What are you doing up here? Are you seeing the Minister about it?” The, man who had interviewed me replied, “ Oh, yes. I am going to give them all a’fly’.” I am afraid that is how it wouldbe if we gave every soldier this right of appeal to the Governor-General. I trust the Committee will not accept Senator Elliott’s amendment.
.- - The Minister has fairly pointed out to the Committee precisely where we stand in regard to the one point at issue, namely, whether we should give the soldier the right of appeal to the highest Court in the land : the Governor-General in Council. I ask honorable senators to give the matter very careful consideration. A great many men come to me, just as the Minister said they came to “him in London, and on their story, prima facie, they have suffered grievous wrong. It would appear that their superior officers, one after another, acted like rubber stamps. Apparently, they accepted entirely the word of the officers below them. If a captain or a major inflicts a wrong upon a man, and he appeals to his colonel, the captain or the major may come along and say, “ Private So-and-so is a rotter. You cannot believe him.” The colonel then confirms what the captain or major may have done, and his decision, perhaps unconsciously, implicates him in seeing that the decision is upheld before the brigadier. Unfortunately, the private has no chance of getting in first, and so superior officers get their minds prejudiced against the man. This is the danger I see in refusing this ultimate right of appeal to Parliament. It would be a case of in terrorem. Many colonels and brigadiers are not disposed to put themselves about to redress wrongs; but if they thought there was a possibility of a soldier getting his grievance ventilated in the Parliament, they would feel it necessary to do their duty. Honorable senators will find that my amendments provide drastic penalties for an officer who wilfully neglects his duty in this respect. He may be sued for damages.
– How could an appeal be brought up in Parliament?
– I presume that in respect of any appeal to the GovernorGeneral the evidence and all the papers could be brought to the Parliament and discussed. I propose that if a man disputes the correctness of documents or complains that documents affecting his case have been extracted from the file - and such things are not unknown - his complaint may be referred to a Judge, so that the preliminary facts may be sifted with the assistance of counsel, and the complete case could then be brought before Parliament. I hope that honorable senators will not be influenced by the idea that there would be so many of these appeals that they would block the ordinary course of administration of the Army. They will remember that I propose to provide that in time of war the Minister shall have power to suspend the hearing of a complaint until the end of the war.
– The honorable senator means that the soldier may go on suffering an injustice for years.
– That is possible. But his complaint will be on record and the officer of whom he has complained will know that if both survive., his action will ultimately be subject to review. I admit that what I propose is the introduction of provisions which will be largely in terror em. It is possible that some officers will take the chance that they, or those who have complained of them, will be wiped out, and complaints against them settled in that way. But if the proposals I make are accepted, officers will know’ that their conduct may be severely criticised in Parliament on their return to Australia. I am aware of the difficulties in the way of giving effect to what I propose, but I am prepared to go very far to at any rate create the impression that our soldiers, who are not free to join the Army’ or leave it alone as are men in Great Britain, but are conscripted willynilly, will ultimately, so far as we can secure it to them, be given a square deal and be protected from grievous wrong. My proposed amendments are in keeping with the democratic idea that we should make no distinction between officers and rank and file. I have crossed swords with the Minister for Defence in this matter to secure for all ranks the right of an ultimate appeal to Parliament, if they feel aggrieved.
– Senator Elliott has almost persuaded me to support his amendment, which, I understand, we will have an opportunity to consider in print after the dinner adjournment. In the meantime, I should like to draw’ attention to the amendment submitted by the Minister for Defence, and to the inclusion in it of the five little words, “ except in time of war.” I am not at all satisfied that they mean what the Minister intends them to mean.
– In time of war there could not be an appeal to the Military Board.
– Nor, as I read the amendment, can there be an appeal to the General Officer Commanding the Australian Military Forces.
– !AU that the use of the words “ except in time .of war “ means, if read in conjunction with the rest of the amendment, is that there will still be the right of appeal to the General Officer Commanding but not to the Military Board, in time of war. I am afraid that the honorable senator is basing his remarks on a copy of an amendment which I submitted but which has beep withdrawn.
– I find that a corrected amendment has been submitted to the Committee which somewhat alters the meaning of the amendment submitted by the Minister for Defence. It seems to me that what honorable senators have toconsider is the real difference between the amendment submitted by the Minister for Defence and that submitted by Senator Elliott.
– It occurs to me that there is no real difference between the amendment proposed by the Minister and that submitted by Senator Elliott.
– There is a material difference to the soldiers.
– There may appear to be so from the wording of the 6wo amendments, but in actual operation I think it would be found that there wouldbe no difference. The soldier is debarred the right to appeal to the Executive.
– Under my amendment he would be given that right.
– The Minister’s amendment would allow him to appeal only to the Military Board.
– That is so.
– We have to consider what the Executive really is. If a soldier appealed from the Military Board to the Executive, what real advantage would that give him? He could not appear before the Executive. He might send his complaint to the Minister to have it brought before the Executive. The Executive Council at ‘which the complant is considered might consist of three or four Ministers and the VicePresident of the Executive Council. The Minister might say at the Executive meeting, “ This is a case in which the soldier has already been to So-and-so. He has had four appeals already. His case has been thoroughly investigated, and I cannot recommend that anything should be done.” The Minister might take this course in the honest performance of his duty, and what benefit would the appeal to the Executive be to the soldier in such a case.
– Under my amendment a Judge would have found the facts, and his findings would be before the Executive.
– We may be using a steam-hammer to crack a watchcase.
– The honorable senator might move that these cases should be investigated by a Select Committee of the Senate.
Sitting suspended from 6.20 to 8 p.m.
Clause 59 -
Section 124 of the principal Act is amended -
by inserting in paragraph(g) of subsection (1) thereof, after the word “courts martial” (second occurring) , the words “ and the powers exercisable in relation to those findings and sentences”;
by inserting after paragraph(ga) of that sub-section the following paragraph : - ” (gb) The restraint, discipline, and training of persons in cus tody or detained in a prescribed institution or place under Part XII. of this Act.”;
by inserting in paragraph (i) of that sub-section, after the word “ regulation,” the word “command”;
by omitting from paragraph (p) of that sub-section the words “and rifle’ practice,” and inserting in their stead the words “ rifle, aerial gunnery, and bombing practice”; and
by omitting from paragraph (q) of that sub-section the words “or military,” and inserting in their stead the words “ Military or Air Force.”
Section proposed to be amended - 124. (1) The Governor-General may make regulations, not inconsistent with this Act. prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for securing the discipline and good government of the Defence Force, or for carrying out or giving effect to this Act, and in particular prescribing matters providing for and in relation to -
the convening, composition, procedure, and powers of courts martial and courts of inquiry, and the revision and confirmation of the findings and sentences of courts martial, and the mitigation, remission, and commutation of the punishments; .
the regulation of artillery and rifle practice;
the preservation of the public safety in or at any naval or military operation or practice;
.- This clause, which looks rather an involved one, is not so in fact. It provides for the insertion of certain words in various places, and is intended to permit of the regulations giving confirming officers power to deal with any findings or sentences of courts martial found after confirmation as being completed to be invalid. The new paragraph gb permits the regulations to govern the nature of the restraint, discipline, and training of trainees under sentences of detention awarded by a civil Court. The word “ command “ is intended to allow the regulations to provide for affiliated units of Senior Cadets being under the command of the Citizen Force Divisional and Unit Commanders. They are really technical amendments.
– There is just one provision in section 124 of the Principal Act upon which I desire an explanation. I refer to paragraph ra, which reads -
The regulation and control of aerial navigation.
I feel that this Committee is not prepared to hand over to the Military authorities the regulation and control of aerial navigation. “Under this Bill the GovernorGeneral in Council will have power to issue regulations controlling aerial navigation, whilst under our Defence Act he will be empowered to issue regulations relating to an Air Force. Is it the intention of the Government that two sets of regulations shall be framed, one under each of these measures, and that these regulations shall apply only to military purposes, or will the wideness which is implied in the paragraph which I have quoted, empower the authorities to make regulations governing aerial navigation?
– My answer to the honorable senator is that the paragraph in question will not give a general control of aerial navigation.We have already legislated in regard to civil aviation by means of an Act, and of regulations framed under that Act. But, so far, we have not an Act providing for the establishment of an Air Force, notwithstanding that we have an Air Force in existence. At present that Force is being governed by our Defence Act. But in addition, it is necessary in connexion with our military defence that we should possess certain powers over aerial navigation, so as to prevent, for instance, flying over a magazine or a fort.
.- I desire to know what procedure is to be followed in dealing with this matter. I understand that we have before us an amendment of a section of the principal Act which deals with regulations. I desire to know whether it is competent for any honorable senator to open up for discussion paragraph ra of the principal Act without submitting an amendment to that particular portion of the regulations. Am I at liberty to ask for an explanation of the whole of the regulations under our Defence Act, or are my remarks limited to the amendment which is before the Committee ?
– In connexion with such an involved clause as that which is now under consideration, it would be some time before I could decide upon the relevancy, or otherwise, to it of any argument which an honorable senator might advance. I am not disposed too rigidly to curtail the privileges of honorable senators. . There would need to be a very marked display of irrelevancy before I would rule the observations of any honorable senator out of order.
– I am afraid, sir, that you did not quite grasp my meaning.
– I rise to a point of order. A discussion of a question of procedure may be all right in its proper place, but I submit that Senator Payne is out of order in attempting to discuss a matter upon which you have already given your ruling.
– I cannot sustain the honorable senator’s contention that ho has raised a point of order. Senator Payne merely asked for information in regard to the relevancy of the remarks of honorable senators to the clause under discussion, and stated that I had not apprehended his point.
– Later on I may find it necessary to discuss some portion of this clause, which has not been amended. That is why I am asking your ruling for my guidance.
– It is all a matter of relevancy, and so many conflicting rulings have been given upon that question that my opinion would have either to be accepted or rejected by the Committee. 1 shall take the responsibility from time to time, as the point arises, of deciding whether the remarks of honorable senators are relevant to the question which is under discussion.
Clause agreed to.
Clause 60 -
Section 125 of the principal Act is repealed and the following section inserted in its stead: - “ 125. All male inhabitants of Australia (excepting those who are exempted by this Act), who have resided therein for six months, and are British subjects, shall be liable to be trained, as prescribed, as follows: -
in the Junior Cadets, from twelve to fourteen years of age; and
in the Senior Cadets, from fourteen to eighteen years of age; and
in the Citizen Forces, from eighteen to twenty-five years of age; and
in the Citizen Forces, from twentyfive to twenty-six years of age :
Provided that unless the Governor-General otherwise directs, training under paragraph (d) shall be limited in each year to one muster parade or one registration.”
.- This clause involves no new principle. It is really a drafting clause, revising the form in which the compulsory training and registration provisions appear in the principal Act. Except for the drafting amendments, the only real amendment is contained in the proviso. It is proposed that the words “ imminent danger of war” shall be . omitted, and that the words “unless the GovernorGeneral otherwise directs “ shall be substituted for them. The right to require training by the use of the omitted words becomes dependent on the question of fact which may be difficult to prove in the absence of a power to declare the existence of imminent danger of war. If the words “unless the Governor-General otherwise directs “ are rejected the words “ except in time of war “ could be substituted. “ Time of war “ is defined in section 4. However, the use of the latter words would entail the Governor-General suspending training under the Defence Act, section - 125d, at the present time, for it is still technically a “ time of war.” The word “ registration “ as at present used might be construed as -qualifying the word “ parade.” For this reason the wording has been altered to read “one muster parade or one registration”. For the sake of uniformity the word “ training” in the proviso has been substituted for the word “service”. Honorable senators will gather from the explanation which I have given that even in the proviso there is no important principle involved. At the same time, one can easily see that a declaration of “imminence of war “ by the GovernorGeneral might be extremely inadvisable. The words which it is proposed to insert in lieu thereof constitute, I think, an. improvement. The fact of the late war technically continuing, although practically it has ceased to operate, justifies the amendment proposed in this clause.
– I should like to know whether this is the time to put the position of those young men who by reason of their age are still liable to compulsory training, notwithstanding that they have had up to three and four years’ experience of active service at the Front. When these young fellows returned to Australia, probably a year or two ago, it was arranged that, a number of them should not be required to attend compulsory drills.
– A proclamation was issued exempting them from attendance at such drills. Subsequently, in 1917, the Act was amended by providing that persons who had been upon war service might be exempted from compulsory service under such conditions as might be prescribed. Under that regulation the men to whom the honorable senator refers have been exempted.
– Honorable senators will recollect that upon the motion for the second reading of this Bill, I advanced certain arguments against compulsory training. If there be one thing more than another at which we aim in connexion with our Military Forces, it is efficiency. It is practically a stupid thing to compel a man to devote a certain amount of his time to something in which ‘he has become proficient years before. I do not think there is any military advantage in it. The average intelligent young Australian will learn all the ordinary drill necessary for a private in six weeks, and become quite efficient. He may not be a show man, but he will at least be fairly efficient in the time, as regards all the movements and orders he is called on to obey, with the excellent physical training that most of our schools give. I am not- trying to limit or take from the Department or the military authorities the right to have what they consider efficient training. I have here an amendment which has been hurriedly drafted, but if the principle is accepted it can easily be put into proper shape. I move -
That the following words be added to the clause: “Provided further that any member of the Senior Cadets or Citizen Forces may be exempt from further training upon passing a prescribed examination.”
I leave it to the Department to prescribe the examination and to the members of the Senior Cadets and Citizen Forces to pass it. If a member of the Citizen Forces can pass the examination now necessary for sergeants, what occasion is there to train him any further ? The examination would not only be written, but also practical. Why should a young man who, at the age of 19, is as efficient as he ever will bie, be compelled if he stays in the ranks to go through the same movements and the same training year after year?
– May we not want that man as a non-commissioned officer, or an officer, if he is so efficient?
– Exactly, but I believe a proviso such as I suggest would be really an incentive to trainees to make themselves efficient.
-brockman. - When you say a cadet can became efficient in six weeks, what do you mean by six weeks ?
– The ordinary intelligent young man, if taken into camp for six weeks, would probably become in that time as efficient as ever he would be as a private drilling in the ranks. Of course, in certain technical arms, it would take much longer for a man to become efficient. But what I want to avoid is the humdrum ‘ repetition year after year of movements and orders that are so familiar that they become repugnant. The Department could prescribe a very strict examination. I do not mean that the senior cadet should be exempted for all time on passing, the examination. I would’ have the Senior Cadets and Citizen Forces kept separate in that regard. The cadet needs his first two years of training as a junior, then he goes into the Senior Cadets, and if after his first twelve months there he can show he has reached the standard of efficiency required by the Department, why not exempt him until it is time for him to go into the Citizen Forces? A similar principle has been applied to public schools. An age was fixed at which boys could leave school, but an examination was .also provided to enable a boy who passed it to leave before that age. If efficiency up to the standard required by the Defence Department can be secured in two years, why compel a man to drill six or seven years? From inquiries I have made and what I have seen of the cadet training, I feel that the Department will be compelled sooner or later to reconsider seriously the whole system of training for the youth and manhood of Australia.
– Don’t you think that 95 per cent, of them like going into the damps for training?
– No doubt’ many young fellows do.’ ‘ I read an account lately of how a deputation waited on the camp commandant to ask that their time in camp should be extended. I can quite understand that, particularly at present, when the military life is very popular among young men. What good is to be obtained from training men for . a long period to reach’ a standard of efficiency when you could prescribe that standard and induce them to reach it in much less time? What is desired is efficiency. The test of efficiency is examination, and that examination will be prescribed by the Department. I have had this pro posal in my mind for a long time; in fact, somewhere about 1911 I moved a similar amendment. Time has gone on, and the Forces have been trained. The compulsory system is undergoing a test. Whether it will be successful or not has yet to be seen. Because it is in the experimental stage, I desire to make it as popular and intelligent as I can. I therefore want a standard of efficiency prescribed that will give the senior cadet or the citizen soldier an opportunity of winning his way out, not by shirking, but by proving that he is efficient. That would be a step in the right direction to popularize compulsory training.
– No one could object to the terms in which Senator Gardiner has put the amendment forward. I think he ‘has said all that could be said to recommend it; but there are some serious objections to it. It is extremely doubtful whether, if a proper standard of efficiency were laid down, any person doing only the amount of training demanded by the Defence Act would be able to pass it. Consequently, only those who could obtain outside coaching, in addition,- Would be able to pass it. That, obviously, would play into the hands of one section of the community: that is, those who could afford the time and money for such coaching. Among the Senior Cadets the boys who by this means would escape their obligations under the Defence Act would be those attending the secondary schools, and not those who have to go out to earn their own living. The senior cadet is not only being trained in military movements, but the training aims at his physical development. If a fourteen-year-old boy were able to pass tha test of efficiency he would not be compelled, under Senator Gardiner’s amendment, to undergo any more physical training until he reached the age of eighteen,’ and he might neglect his physical development in the meantime. The physical development brought about by this training is a great asset to the country. It is the principal part of the training. I do not say that the amount of training the cadets get is sufficient to develop them thoroughly; but it gives them a liking for physical development and encourages them to take up sport of various kinds to develop themselves further. What would happen when the cadet became a soldier? The Army is art organization, and the organization is carried down to small units, companies, and platoons. If the amendment were carried, as these men became efficient they would be lost to the platoon or company The standard of training in the unit is raised according to the number of efficient soldiers in it, and the presence of efficient soldiers has a beneficial effect on those who are less efficient. Very often an officer calls attention to the efficient way in which a certain soldier is performing an exercise, as an example to the others; but under the amendment we should lose all the efficient soldiers, and the company would consist only of the less efficient. That would have a very bad effect. Our Force is officered by Citizen Force officers. The company officer gets a good part of his training by drilling his platoon or company. If he had only the less efficient, it would militate against his training as an officer. It would be more helpful to him as an officer to have a more efficient company, and to be able to take on the higher training. For these reasons, I must ask the Committee to reject the amendment, although there is at the back of it a very important principle. I can see that, from an economic point of view, it would be better if we could shorten the number of years in which the training is carried out. There would be an economic value to the soldier and to the country if we could compress the training into a shorter period, and it would be less irritating, because the trainee would know that, having made himself efficient, he had relieved himself of the obligation of coming up year after year. If we did that, however, it would be by units, and not by individuals. The quota of a certain year would come in, do its annual training and reach a certain standard, and would not be required to go through that course again ; but that would apply to all the members of it. . If they did come up again it would be only for extended training in the shape of battalion or brigade drill. That is a variation of Senator Gardiner’s proposal, although the same principle is at the back of both? ideas. However, I cannot accept the amendment at this juncture.
– There is some . satisfaction in moving an amendment when the Minister for Defence (Senator Pearce)1 admits that from one point of view, at’ least, it may be the means of effecting; economy and increasing efficiency. I desire to ask the Minister if he could not insert in the Bill a clause which would! give the Defence authorities power to do what I ask, and , which he, to some extent, supports, although it need not be compulsorily carried out. The Minister can adopt whatever form he likes, and if some such provision were embodied in the Bill it would, I think, tend to higher efficiency and greater economy. I am not surprised at the silence which followed my amendment, and as there does not seem to be much prospect of obtaining general support I shall not press it. But I want to show that even in the matter of companies, battalions, or brigades there might be a saving if we had a clause based on the principle I have mentioned, which, I think, is generally admitted to be sound. There should be some tangible, reward for efficiency.
– I shall certainly give the matter consideration.
.- I do not want Senator Gardiner to think that, because honorable senators did not immediately rise to discuss his amendment, there was any lack of sympathy with his proposal. The difficulty we feet is in connexion with effectively carrying it out as training progresses from year to year, and it would be impracticable to compress the whole of the various sections of military work with which a man should be familiar in one or two years. If it were only a matter of becoming efficient in the old-fashioned drill that was undertaken in the days of the Peninsular War it might be possible. But the modern military syllabus is very extensive in its scope and training during the war and since has become still wider in its scope. Before the war we knew nothing of bombs or trench, mortars, but with them we are now quite familiar. The probabilities are that in or after future wars the syllabus will again be extended. Whilst I have the greatest sympathy with Senator Gardiner’s idea, I believe that it is somewhat impracticable. In the past we have had competitions between brigades in an endeavour to create a spirit of rivalry, and to make battalions efficient, but I do not think it is possible to work along the lines indicated by Senator Gardiner by exempting any portion of the Forces for a period. It is true that some individuals may in a week’s time acquire as much knowledge in a particular branch of military work, as other individuals would acquire in three weeks, but even then there is great danger in attempting to make any exemptions and exceptions in favour of individuals. It would inevitably lead to an outcry as to favoritism, and would generally cause discontent, if we were to attempt anything of the kind. I am not criticising the amendment in a hostile manner, and desire to. assure .Senator Gardiner that I am opposing it only because I consider it impracticable.
– I do not think Senator Gardiner should be depressed at the reception given to his proposition. It has received the close attention of the members of the Committee, and after hearing what the Minister has said it is evident that the principle on which the honorable senator based his proposition is one which appeals to the Minister. The Minister has pointed out that if a clause of this kind were inserted it would prejudicially affect training as a whole, and Senator Elliott has mentioned that it might possibly lead to all kinds of complaint being made by individuals on the ground that favoritism was being shown. That, to an extent, could be avoided if the conditions of the examination or the requirements to enable any individual to be exempt were laid down in sufficient detail. The Minister has said that he will give consideration to the principle, and has intimated, I think, that it might be applied not merely to individuals, but to units. I am not quite sure whether the Minister, even under the clause he has proposed, would not have that power, because if he will look at the operative words he will see that any male inhabitant of Australia, except those exempted by this Act, will be liable to be trained as prescribed. I do not think that there is any one in this chamber who knows the meaning of the words “as prescribed” better than the Minister, and’ possibly when regulations are being introduced to give effect to the principle of compulsory service it will be possible to prescribe something that will give effect to the principle embodied in Senator Gardiner’s amendment, and in a form that will not be detrimental to the efficiency of the trainees. I invite the Minister’s consideration to the words I have quoted, because I think he will find that if he desires to give effect to the principle there is sufficient power to carry out what is in his mind and in the mind, of Senator Gardiner.
.- If Senator Gardiner is agreeable to insert additional words in his amendment, to the effect that any person who has served five years in the Senior. Cadets or Citizen Forces, and who has passed a prescribed examination, shall be exempt, I will support him.
– Will the Minister explain whether the seventy days’ training is to be brought in under this clause?
– No, that is covered by clause 62, where it deals with the number of days and hours.
– In reply to the point raised by Senator Keating, I do not think we could provide for what he suggests by regulations framed under the Act.
– I do not think so, because the regulations must be consistent, with the Act.
– I purposely refrained from attempting to come down to details in regard to my proposal, because I realized that in doing anything in this direction a good deal of latitude would have to be allowed to those conducting the training of our Cadets and Citizen Forces. It would be better to have a general principle, allowing full scope for making alterations in accordance with the ideas as they developed after consideration. I am pleased that the Minister lias agreed to give this matter some consideration, and shall not,, therefore, “debate it at greater length.
Clause agreed to.
Section 126 of the principal Act is amended by omitting from sub-section (3) thereof the weird “ seven “ and inserting in its stead the word “ eight.”
Sub-section proposed to be, amended -
.- At first sight this may appear to mean an extension of one year in the period of training. As a matter of fact, it is not, as a proviso in section 125of the Act reads -
Provided that, except in time of imminent danger of war, service under paragraph (d) shall he limited to one registration or one muster parade.
We have altered that to read “Provided that unless the Governor-General otherwise directs.” We have altered the word “ service “ to the word “ training,” but action can only be taken under proclamation by the Governor-General. There are eight years in which training, subject to that proviso, may be imposed. There is no actual increase in the years of training.
Clause agreed to.
Clause 62 (Duration of training).
– Honorable senators will see that this is a new provision which precludes the Government from doing by regulation what was suggested by Senator Keating in discussing another clause. This embodies a desirable drafting amendment, and reduces the present proviso to a definite subsection. The important amendment is in paragraph b of sub-section 1. There is no alteration in the number of years of training for Senior Cadets, nor in the present minimum or maximum, but as in the training of naval and military cadets there is naturally much difference, an amendment has been necessary to provide for greater elasticity. The present section, 127(1) (b), and the present second proviso lay down specifically the total number of whole, half-day, and night drills with an accumulated minimum of sixty-four hours annually.
The maximum hours provided in the Act at present is only limited by the. duration of a whole day, half-day, or night, and taking the basis of an eight-hour day, the present maximum is 128 hours. It is intended in the Military Senior Cadets that the parades, with some variations for local circumstances, shall be of a duration of two and a half hours minimum, and the number of parades will be based upon the number of times the period of two and a half hours is contained in the proposed minimum of sixty-four hours. On the other hand, Naval Cadets may be required for parades of longer duration to enable them,for instance, to be taken by boat for naval training. The proposed wording of section 127(1) (b) is framed accordingly, providing only the present minimum and maximum, but leaving to the regulations of each service the number and nature of the parades to be held each year. The present second and fourth provisos are omitted as being unnecessary in view of the new wording of 127 (1). The fifth proviso is also omitted as being unnecessary in view of the amended wording of the present third proviso, which is now incorporated in the proposed sub-sections (2) and (3). In the first proviso “ Army Veterinary Corps” and “Army Ordnance Corps” have been added, as the attendance of their members throughout the seventeen days’ camp with the artillery and engineers is necessary for the maintenance of veterinary and ordnance services in the camp, in the same way as the medical officers must be maintained throughout the whole dura’ tion of the camp for artillery and engineers. The second proviso in the proposed section is intended to cover the policy of allotting a proportion of Citizen Force officers for duty with the cadet battalions affiliated with their units. By this system, the cadet and militia units will be brought into closer touch and a continuity in training in the cadets and militia attained.
Senator GARDINER (New South Wales [8.49]. - I notice that at the end of the clause there is a provision that attendance at such drills as are prescribed shall be compulsory. Will it weaken the Bill if a proviso is added to the effect that attendance at such drills may be reduced by regulation as a reward for efficiency?
– I cannot accept such a proviso off-hand. The Bill will come before another place, and that will enable the Government to give consideration to the point raised by the honorable senator.
Clause agreed to.
Section 130 of the principal Act is amended by omitting the words “ of paragraph (c) “ and inserting in their stead the words “ of paragraph (c) or (d)”. Scotton proposed to be amended -
Persons who are being trained under the provisions of paragraph (c) of section 125 of this Act shall receive pay as prescribed.
.- The amendment provides for the pay of Citizen Forces in their last year of training. Usually this training consists of one muster parade or registration for which the regulation would prescribe no pay; but if during this last year they should be required to do full training, that is in time of war, under the provisions of the Defence Act, . it is necessary that they should then be paid. This was previously overlooked in the Act.
Clause agreed to.
Clause 64 -
Section 132a of the principal Act is repealed. /Election proposed to be repealed - 132a. ( 1 ) Persons who are not liable to be trained under this Part of this Act amd who have served on war service may be’ voluntarily enlisted in the Citizen Forces.
Persons voluntarily enlisting in the Citizen Forces under this section shall serve and be discharged in accordance with the provisions of Part III. of this Act, and shall receive pay as prescribed.
– The section which is proposed to be repealed was inserted in 1917, at a time when the Forces were returning from abroad, with the intention of providing for their voluntary enlistment in the Military Forces. There was no necessity for the insertion, of this section in the Act, as there is nothing in the Act but this section to prevent voluntary enlistment of any one in the Citizen Forces under the powers conferred upon the GovernorGeneral to raise such Citizen Forces as appears necessary for the defence of the
Commonwealth. This section has not only a positive, but also a negative, force in that it impliedly prohibits the enlistment in the Citizen Forces of persons other than those who have engaged in war service, and it is doubtful whether, with the existence of this section in the Act, the voluntary enlistment in the Citizen Forces of persons other than those who have engaged in war service is permissible. It is the- approved policy that persons other than those who have served in war service should be eligible for voluntary enlistment in the Citizen Forces, especially in regard to technical personnel, such as dispensers, tradesmen, mechanics, and specialist tradesmen for technical units.
– Some months ago the InspectorGeneral of the Forces approached the central executive of the soldiers’ organization asking them to do what they could to get returned men to join up. I understood him to say that some new amendment of the Act was proposed in order to ‘ deal with these matters. We have passed the clause in which I might have mentioned the subject, but I may be permitted now to say that I understood that a clause would be necessary to enrol the men so that they might receive pay.
– It has been found unnecessary to do that.
Clause agreed to.
Clause 65 (Efficiency required).
– This amendment is to provide for the important work of classification, for efficiency being performed by a Board of officers instead of by a single officer.
Clause agreed to.
Clause 66 agreed to.
Clause 67 (Failure to perform continuous training, &c).
– This is a particularly long clause, and I hope honorable senators will bear with me if I just say a word dr two with respect to it. My construction ‘ of the Standing Orders is that a clause must be’ put as a whole, but in order to facilitate discussion of the clause, I purpose to read each marginal note, and I . shall expect honorable senators to discuss that section of the clause to which the marginal note applies. We shall proceed continuously through the whole clause in this way. I trust honorable senators will not retrogress after one section of the clause has been called on.
– I shall find it somewhat difficult to make my explanations upon several portions of the clause without referring to the whole clause.
– The Minister may do that, but he will see the difficulty in which I am placed. Honorable senators sometimes desire a long clause to be dealt with section by section, but the question must always be put in regard to the whole clause.
.- The amendments represent a general revision df the experience of the Law Department in connexion with prosecutions dealing with compulsory service. We have been accumulating experiences over a number of years, and the Crown Law officers and the military officers with legal training have been in conference with a view to redrafting the whole clause dealing with this vexed and somewhat involved question of enforcing the compulsory training provisions of the Act. The present sections 135, 135a, and 135b, dealing with prosecutions in connexion with compulsory service, have been recast. The provisions of the present sections have proved far from satisfactory. There have been a number of cases in the past of illegal detention which have been mainly due to the absence in the Act of definite provision as to awards of detention being cumulative or concurrent, and as to the date of commencement of awards of detention, as well as to the absence of any provision requiring the Court to issue a commitment warrant in respect of awards made by it. The terms custody, confinement, and detention are at present used in a manner likely to cause misunderstanding among militia and area officers. The proposed draft amendments also cover a number of minor points in which difficulty was previously experienced. The old maxima of punishment have not been altered except that in the case of offences of absence from continuous training, and failing to perform the whole annual training, the penalty, instead of “ not exceeding twenty days “or “ for a time corresponding in duration to the time which in the opinion of the Court would be taken up in rendering the personal service required “ is now the equivalent «f the training which has been missed, and such additional terms, if any, not exceeding twenty days, as the Court thinks fit. It is to be remembered that the annual training for some units is twenty-five days. It is thought that the new wording will tend, if anything, towards magistrates awarding less punishment than they have done hitherto. Further, the provisions of sub-section 2 of the proposed section 135b entail a deduction from the penalty for failing to perform the annual training of the number of days equivalent to any number of days he may have served in detention during the year as a result of missing compulsory parades. Absence from continuous training is made a separate offence from that of absence from the compulsory parade. The draft includes an alteration that an award of custody where a person is ordered to report from time to time to a prescribed authority shall be confined to offences by senior cadets only. That is a general explanation of this long clause. I can assure the Committee that the separate proposed sections have been carefully considered, keeping in mind the general principles laid down in the existing Act. The proposed new sections contain no departure from those principles. The purpose has been to draft the existing provisions in better form to enable magistrates to more clearly understand the intention’ of the Act.
– Has the Minister any idea of the percentage of prosecutions to the total number of trainees?
– I could get the information for the honorable senator, but I am not able to answer him offhand. I am gratified to be able to say that since the inauguration of the encouragement of sport amongst the Senior Cadets, and the formation of Citizen Committees, the number of prosecutions for nonattendance at parades has fallen off immensely and the attendance at parades has increased. Many of the areas now show an average attendance of 97 per cent. The prosecutions for non-attendance at parades has fallen off to such an extent that in the present year we are reducingthe Provost Staff employed in hunting upabsentees from parades.
– I consider that it is not fair to the Committee that amendmentsof the existing Act should be put before- them in clauses that are as long as the Bill ought to be. I think that clauses should be drafted in the concise form to which we have been accustomed in the Senate. I was struck by the Minister’s reference to the increased attendances st parade. I was glad to hear the honorable senator say .that an improvement is shown, but I wish to utter the warning that the figures should be examined with very great care. If the officer in charge of an area is one who is aiming at satisfactory results for himself, he may not correctly state the number attending a parade. Another .area officer, in the conscientious performance- of his duty, may mark. as absent every cadet who is absent from a parade. In two adjacent areas, we may find that one shows an attendance of 80 per cent., and the officer who has carried out his work conscientiously may be reprimanded because he cannot show an attendance of 97 per cent, shown on the books of his neighbour, who might never really have had anything like that attendance.
– Who may have “cooked” his books?
– Absolutely. To give too much attention to what appears on the books of” an area may result in injustice. Honorable senators are aware that young fellows speak of what goes on, and sometimes in joking they give themselves away. One area officer, desiring to obtain results for himself, might easily show a higher attendance on his books than another who has been more conscientious in the exact performance of his duty.
-brockman. - What about classification for efficiency at the end of the year? That is what counts. The dishonest officer will then be up against it.
– I have no doubt that the principal officers of the Defence Department know more of this matter than I do, but when I see a provision which I think is open to abuse, it is my duty to mention it.
.- I have not had the advantage of being present in the Chamber within the last half hour or so. When the introduction of this Bill was first mooted, I saw in the Sydney Morning Herald a summary of its provisions. I saw that there were alterations proposed in connexion with cadet training, and that under certain conditions in the last year seventy days’ continuous training was provided for. In answer to Senator Gardiner this afternoon, the Minister for Defence (Senator Pearce) said that the proposal had been postponed pending the return of. the Prime Minister (Mr. Hughes) from the Imperial Conference. I understand that the proposed new sections contained in the clause before the Committee largely deal with penalties for nonattendance of trainees at parades, and they are submitted as the result of the experience of the last few years in dealing with cadets.
– The clause represents a re-drafting of existing sections relating to prosecutions. There is nothing new in it.
– I thank the Minister for that explanation. I wanted to inquire whether we shall be right in assuming that towards the end of the year the whole system of cadet training will be reviewed, and possibly revised.
– -I cannot say that, because I do not know.
– In my opinion, that is badly required. I have hitherto supported compulsory military training, but, for the life- of me, I cannot see the good of much that goes on in connexion with cadet training. There is a growing opinion that unless our system of compulsory training can be tightened up, so as to reduce the waste of time in roll call and unnecessary marching and tramping, and to provide for more practical work, the discontent with the whole system will be increased, and may be reflected here, perhaps at no distant date, by the scrapping of the whole system. I heard only to-day that a cadet had .complained that he had just finished his last year’s training. He was twenty-two years of age, and, although he had had training for some years, he had never had a uniform, and had never fired a gun. The youths of Australia are probably more keenly intelligent than are the youths of any other country, and I urge upon the Minister for Defence that if those who have hitherto supported compulsory military training are to continue to do so, the system adopted must be of a practical nature, and not merely a time-wasting device.
Clause agreed to. <
Clause 68 -
After section 135b of the principal Act the following section is inserted : - “ 135.ba. When a person is convicted of an offence’ against sub-section (1) of section 134a or. sub-section ( 1 ) of section 134b or subsection (1) of section 135 of this Act is ordered to be detained in a prescribed institution, or place, or into the custody of a prescribed authority, the Court by which the order is’ made shall issue a warrant in the prescribed form committing the person to a prescribed institution or place or into the custody of the. prescribed authority, as the case may be :
Provided that the failure of the Court to issue a warrant in the prescribed form shall not affect the liability of the person to undergo the detention or custody ordered.”
– I direct attention to the proviso attached to the proposed new section. I want to know whether, under that proviso, even if a magistrate refuses to issue a warrant, the Defence Department will still imprison the. trainee?
– We do not imprison trainees.
– Well, will still detain him. I have heard some serious complaints about the detention of. cadets. Some have complained that they have actually been knocked about by officers who, having got them under them, have “ put the boot in.” I want some explanation of the proviso to which I have directed attention.
– This proposed new section refers only to persons who have been committed by a magistrate to the custody of the military authorities. The magistrate should, after committing an offender to the custody of the military authorities, issue a warrant authorizing them to detain the offender. Hitherto, magistrates have not been required to issue warrants. The proposed section is considered necessary because these cases are very often dealt with by the unpaid magistracy, which, consists, no doubt, of a splendid body ofmen, but all of whom are not learned in the law. When a conviction, is . recorded, the magistrate commits the trainee to. the custody of the military authoritiesto undergo the period of detention he has imposed. The new section provides that, in addition, he shall issue a warrant to the authorities to hold the cadet committed to their custody. If a magistrate does not issue a warrant, we still require authority to hold the trainee until the omission is rectified. The warrant is required for the protection of the Department in case of legal proceedings. If any one suffers because a warrant is not issued it will be the Defence Department. In practically all cases warrants will be issued, but if any magistrate has overlooked the necessity forissuing a warrant, we shall still want to be able to hold the trainee.
. - I have seen too much, particularly under the present Government, of illegal acts under military regulations, to pass a provision of this kind without a pronounced protest. The proviso reads -
Provided that the failure of the Court to issue a warrant in the prescribed form shall not affect the. liability of the person to undergo the detention or custody ordered.
This proviso is a violation of a very important principle.. No one should be detained except upon the authority of a warrant. I have seem the militaryauthorities. of Australia defy the Courts in New South Wales, Victoria, South Australia, and Western Australia by means of trickery. I can recall one case in which an action was pending in the Supreme Court of New South Wales, and only a day oftwo before it was to come on for hearing the military authorities hurried their prisoner to Victoria.. When action was about to be taken in Victoria they hurried him to Adelaide.
-Is the honorable senator referring to his friend Father Jerger ?
– Yes. In Adelaide the military authorities kept their prisoner on board ship, and in Western Australia they again evaded the law. I contend that law: and justice in this country are too sacred to be interfered with by trickery.
– That case has nothing whatever to do with military training..
– Neither has this clause.
– Father Jerger’s case was one of disloyalty:
– He was judged withouta trial. In his case the Government went out of theirway to trick the Courts instead of saying in a manly way, “Here is our authority f or interfering with this man. If the law thinks that we are interfering with himillegally let it say so.” If we take the view which has been expressed by Senator Cox that a man is to be adjudged guilty and punished without a trial, we shall only hasten the day when we shall have no law, but simply anarchy. Under the proposed new section a young man may be brought before a magistrate.
– The clause says that where a person is convicted of an offence against sub-section 1 of sections 134a of the principal Act, and is ordered to be detained in a prescribed institution, the Court shall issue a warrant in the prescribed form.
– But it also says -
Provided that the failure of a Court to issue a warrant in the prescribed form shall not affect the liability of the person to undergo the detention or custody ordered.
– The honorable senator should read proposed new section 135ba.
– Very well. The clause reads : -
After section 135b ofthe principal Act the following section is inserted : - “ 135ba. When a person is convicted of an offence against sub-section (1) of section 134a or sub-section (1) of section 134b or subsection (1) of section 135’ of this Act is ordered to be detained in a prescribed institution or place, or into the custody of a prescribed authority, the Court by which the order is made shall issue a warrant in the prescribed form committing the person to a prescribed institution or place or into the custody of the prescribed authority, as the case may be:
Provided that the failure of the Court to issue a warrant in the prescribed form shall not affect the liability of the person to undergo the detention or custody ordered.”
The reading of the entire clause has simply strengthened my argument, because, notwithstanding anything contained in it, the military authorities may say that the warrant of the magistrate is unnecessary. Knowing that a person must be legally detained without a warrant being signed, if the military authorities claim the right to detain a trainee in such circumstances, what may happen ? The person may be convicted.
– He would have to be convicted.
– He may be convicted of not having fulfilled his obligations in regard to compulsory training, but the magistrate may say, “‘Well, you have not complied with the military regulations, but, although you are guilty under the Act, I shall not issue a warrant for your detention.”
– If a trainee is convicted the magistrate must order him to be detained.
– We cannot legally hold a man except upon a properly signed warrant. But if it comes to a question of the illegal detention of any person, the military authorities will get out of the trouble by blaming the magistrate, and the magistrate in turn will blame the military authorities, so that the person who is really in the wrong will not be brought to book. It may be a short cut to detention for the military authorities to say “If a magistrate makes the mistake we should detain the offender.” I have not any confidence in the Defence Department in its dealings with civil liberty. The very training of the military authorities prompts them to ride roughshod over civil liberty. All the safeguards of such liberty - the issue of the warrant before arrest, the signing of the warrant, and other matters, which are frequently regarded as mere forms - become very important when we are dealing with human life and freedom.
– I find that there is a mistake in this clause and consequently I move -
That the word “ is,” line 3, be left out.
In its present form the clause is not grammatical.
Amendment agreed to.
Amendment (by Senator Gardiner) proposed -
That the proviso to the proposed new section be left out.
– I intend to support the amendment. Of course, recognise what the Government had in view in proposing the insertion of the proviso. But the fact that the word ‘“is” in the first portion of the proposed new section has been omitted doesnot affectthe situation at all. No doubttheyhad in mind the necessity forpreventing the invalidity of a convictionas the result of any informality in the issue of the warrant. For instance, the warrant may not be in the prescribed form, and hence the Defence Department wishes to rid itself of the onus which it ought to accept, because the liberty of the subject is a principle which isverydear to every one of us. If there be any flaw in the issue of thewarrant-
– That would rest with the Court, and not with the Defence Department.
– But the Court may consist of honorary justices, and we cannot get at them. The Defence Department ought to accept responsibility in this matter. It has its own trained officers, and it is only right that it should accept responsibility for any technical objection which may be urged against the warrant under which a trainee has been convicted and detained.
– If the case were a civil one, could not the convicted person apply for a writ of habeas corpus?
– Then the Defence authorities wish to override the common law.
.- I entirely fail to see how the liberty of the subject can be imperilled in any way by this clause.
– The poor trainee may be subjected to detention.
– But he cannot be taken into custody by the Defence Department except upon an order of the Court.
– The clause does not say so.
– It says so quite clearly. The ordinary procedure is for an order of the Court to be made. That order is written in the records of the Court, and is signed by the presiding magistrate who makes it. Such an order will be a sufficient authority for the military officers to take the defendant into their custody. If the magistrate fails to issue the warrant in the prescribed form, that will not affect the holding in custody of the defendant.
– We may be proceeded against on a writ of habeas corpus, and we should want the warrant then.
– The Defence Department wishes to be assured that after the order of the Court has been made it
Can get the custody of the defendant again.
– It can easily do that.
– I am quite satisfied that the liberty of the subject is not imperilled by the clause in any way.
– Suppose that a few hundreds of trainees in one place were arrested without warrants being issued, they might be detained merely upon the memory of a military officer.
– The only authority under which an officer could detain them would be an order of the Court. Occasionally, of course, there may be neglect to issue the warrant in the prescribed form. If the order of the Court is made in the ordinary way, and appears over the signature of the magistrate in the Police Court records, that ought to be quite sufficient.
– In a civil case if there is a - failure on the part of the Court in connexion with the warrant, the prisoner is allowed to go free.
– I am as anxious as any other honorable senator to preserve the liberty of the subject, and ‘if I thought it was going to be imperilled in any way by the addition of this proviso, I should certainly oppose it. I listened carefully to the arguments of Senator Gardiner and Senator Benny, but they do not carry sufficient weight to induce me to alter my opinion as to the necessity of the clause.
– Senator Payne’s attitude seems to be, ‘ This man is sentenced for something ; good enough for him.” I agree that the sentence may be passed and recorded in the records of the Court, and should be carried out; but if somebody in authority said to the officer in charge of the detention camp, “ What right have you to detain these men here?” the officer should be able to produce the warrants in the prescribed form. Is the fact that he wears a khaki uniform to. be sufficient to give him authority to keep a man in a detention camp ?
– How would they know when his term was up ?
– They usually know that well enough. The law says that the warrant shall issue, but Senator Payne contends that if the warrant does not issue it does not matter. His view is: “ The Court says, ‘ Take him away for eight days ‘ ; that is near enough for us.” We ask that the proviso be struck out. so that what is necessary to be done shall be done decently, properly, and in order.
Senator KEATING (Tasmania) [9.331. - What is the reason for the in,sertion of the proviso? Has the Department found from experience that the Courts have frequently convicted persons and not issued the necessary warrant to authorize their detention?
– There have been cases of that kind.
– Then I suppose that has been the experience of other prosecutors also, but in their case there is no provision which enables them to get the. benefit of the conviction if the Court does .not issue the necessary warrant. If Courts have been in the habit of ordering a person’s detention, and not issuing the necessary warrant to authorize it, it is very regrettable. If the Department is to say that although the Court, has failed to. issue the warrant the person convicted and ordered to be detained shall still be liable to detention, that is a very wrong principle, and the remedy is worse than the evil.
– I can see that the majority of the legal members are against me, and will meet the view of ‘the Committee by letting the proviso go.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 69 (Exemptions from training in time of peace.)
– Three different matters are dealt with by this clause. In the past we have had a medical examination of the boys of fourteen years of age. They are required- to be certified as fit for military training. It often happens that a boy is unable to pass the standard, but experience -has shown that it would be of benefit to him, and consequently to the nation, to require him to do the physical training. It would overcome’ the actual defect for which he has been ..rejected. We are, therefore, amending the Act to enable us to accept such a lad fox physical training. ‘ A number of men were unable to pass the medical test during the war, but were put into camps of physical training, and in a few weeks were able to reach the medical standard. As the result of that experience, we are now. extending the principle to the Cadet Force, and this will- no doubt be of great benefit to many of our boys.
There is an exemption for school teachers from the requirements of military training so long as they are carrying out the duties of instructors of cadets. We want that exemption to be given only so long as they are instructing cadets. That is made clear by this clause. The third amendment is simply consequential on the abolition of district commandants, and the substitution of base-commandants.
Clause agreed to,
Clause 70 (Record of service and record books).
.-This clause merely provides a different method of keeping the records of cadets: . There is nothing important in it.
Clause agreed to.
Clause 71 (Appointment of officers).
.- This is a drafting amendment which improves the language of the Act. The term “ noncombatant “ at present used in the Act is a misnomer, as nearly all the units mentioned are combatants. The wording now proposed .is: ‘‘administrative services and departments of the Permanent Forces.”- The additional services included ‘ are remounts and pay. Special qualifications’ in regard to horsemanship are required in officers of the remount unit, and college graduates are not suitable for the position.’ As the law at present stands, before we could appoint officers to this branch they would have to go through the. Military College.
Clause agreed to.
Postponed clause- 4 (Definitions).
– This clause was postponed because some honor’ able senators thought some of the references in it might be affected if the Committee decided to strike out the provisions applying the Army Act in time of peace. The draftsman informs me that this clause is’ not affected by .the rejection by the Committee of the clause applying, the Army Act in time of peace, and that, therefore, no consequential amendments are needed in it. .
– The clause includes the following :’. - “ ‘ Air Force Act ‘ means the Imperial Act called the Air Force Act and’ any Acts amending or in substitution for it and for the time being in force.” I am notaware that we have yet incorporated the Imperial AirForce Act, or that we shall do so.
– No, but we have the same provision applying the Air Force Act to the Air Force in time of war as we have applying the Army Act to the Defence Force in time of war.
– The Air Defence Bill certainly proposes to do so, but that Bill has not yet passed the Senate.
– I am not proposing to apply the Imperial Air Force Act to the Air Force in time of peace. That is quite consistent with the attitude the Government have taken up all along.
-I am not yet convinced that the Imperial Air Force Act should be applied in time of war, because Australia is a continent, and the United Kingdom, geographically, is only a small country. So far as I am concerned, the matter needs discussion. It does not require much imagination to foresee that an Air Force Act for the defence of a continent like Australia, ringed by an ocean, will need to be different in many essential details from an Act which is required only for the defence of a country of 100,000 or 125,000 square miles in extent. We have todeal with 3,000,000 square miles in our aerial defence. I take it thatthe Minister will so frame this definition clause as to make it consistent with whatever’ the Senate does with the Air. Defence Bill:
.- - Did I understand the Minister to say that by some provision of the Defence Act we have already applied the Imperial Air Force Act in time of war?
– Then it has not been done, but it is proposed to do it in the Air Defence Bill ?
– That is right.
– Then is it not somewhat premature to agree to this definition until we have settled, in dealing with the. Air Defence Bill, whether or not that Act shall apply?.
– This Bill will still be in the possession of the Senate, and I do not propose to ask the Senate to pass the third reading until we have dealt with the Air Defence Bill.
Senator PRATTEN (New South Wales.) stands, do we give any control at all in’ time of peace to. the military over civil aviation, or civil aerial depots, or aeroplanes, or any other of itsappurtenances ?
– It is obvious thatthe honorable senator was not present this afternoon when I replied to a similar question from Senator Duncan. We have legislated to control civil aviation by means of the Air Navigation Act 1920, and the regulations made thereunder. We have introducedan Air Defence Bill, which will regulate naval and military aviation, but the Defence Act, although in certain of its general provisions it provides both for’ the Army and Navy,will also require to provide for the Air Force. It will no doubt be essential to pass a military regulation forbidding the flying of aeroplanes over a magazine or fort. It is, therefore necessary to have in the Defence Act certain general provisions’ enabling that to be done. Only to that limited extent would that Act interfere with civil aviation.
.- There is much to be said for the argument submitted that it may be necessary to have something entirely differentin our own Act from whatis contained in the British Air Service Act.
– Would it not be better to consider that phase of the question whenthe Air Defence Bill is under discussion ?
– I propose to deal with it now, because we should realize the importance, and even the urgency of allAustralian legislation being restricted to Australian affairs.Only in this evening’s newspaper there is a report of a statement made by a Minister in Britain which compares the situation in thatcountry at the presenttime with the year 1914, and suggests that we should all act together to save the Empire. Let us consider the serious position which might arise ifour Acts of Parliament were to be dependent upon Imperial Acts, which may, sooner or later, be administered by a Republican form of government. In such circumstances, we should have to begin all over again, and legislate on new lines, Australia is a great continent, to all practical purposes a nation, and in most instances acting in an independent manner. Is it reasonable to expect that we should hang on to our mother’s apronstrings and incorporate in our Bills legislation that is good, bad, or indifferent, merely because it has been adopted by Great Britain?
– No one suggests that.
– That is the suggestion embodied in the definition clause, and it is useless to say that we are not dependent, not on what we are passing now, but on some amendments which may be made hereafter in British legislation. If there are any desirable provisions in British Statutes that could be incorporated in our Acts of Parliament, it would be an easy matter for the draftsmen to submit proposals to the Government for their incorporation. This continual reference to British Acts is very undesirable, and working as hard, I believe, as other honorable senators do, I find it quite impossible to become acquainted with the provisions of the measures we are including in our Acts. I trust the Minister, before the Bill reaches the third-reading stage, will realize the necessity of having at least a purely Australian Defence Act.
Clause agreed to.
Postponed clause 23 (Penalty).
– This clause was postponed because a member of the Committee thought that it might be affected by clause 18, which dealt with the British Army Act. It does not affect it in any way, because the reference in this clause to the Army Act relates only to a time of war.
Clause agreed to.
Postponed clause 58 (Production of Departmental documents).
Upon which Senator Pearce had moved -
That at the end of the clause the following new section be inserted: - “123H.- (1) If an officer of the Military Forces thinks that he has been wronged and, on due application, does not receive the redress to which he considers he is entitled, he may complain through the proper channel to the Military Board, or, if the Military Board is not at the time constituted, to the General Officer commanding the Australian Military Forces in which he is serving.
The Military Board or the General Officer, as the case may be, shall, without delay, investigate the complaint.
If the officer complaining so requires, the Military Board or General Officer, as the case may be, shall forward the complaint to the Minister for submission to the GovernorGeneral together with a report on the subject matter of the complaint.
Any directions given by the GovernorGeneral in relation to the complaint shall be carried into effect without delay.
(a) If a soldier thinks that he has been wronged in any matter by any officer other than his captain, or by any soldier, he may complain to his captain; and
if he thinks that he has been wronged by his captain, either in respect of his complaint not being redressed or in respect of any other matter, he maycomplain to his commanding officer; and
if he thinks that he has been wronged by his commanding officer, either in respect of his complaint not being redressed or in respect of any other matter, he may complain to the general or other superior officer commanding the command, district or station where for the time being the soldier is serving; and
If he thinks that he has been wronged by the general or other superior officer specified in the last preceding paragraph either in respect of his complaint not being redressed or in respect of any other matter, he may, except in time of war, complain to the Military Board.
Any complaint made in pursuance of the last preceding sub-section shall be made through the proper channel.
Where, in pursuance of sub-section (5) of this section, a complaint is made to the Military Board or to an officer, the Military Board or the officer, as the case may be, shall cause the complaint to be investigated, and, if satisfied with the justice of the complaint, shall take such steps as are necessary for giving, to the soldier complaining, full redress in respect of the subject-matter of the complaint.
In this section ‘captain’ means an officer of whatever rank commanding a squadron, battery, company or equivalent command.”
And Senator Elliott had moved as an amendment -
That sub-section (2) of the proposed new section be left out.
– It is very difficult for honorable senators at this late hour to do justice to an important amendment of this character, and I desire to protest against the Bill being rushed through when honorable senators are so fatigued that they are not able to effectively deal with a proposition which may affect the life and liberty of the subject. It is ‘ proposed to import into our Defence Act sections 42 and 43 of the British Army Act to which I have previously referred. The only difference between my amendment and that of the Minister for Defence (Senator Pearce) is that I am anxious to place the soldier and officer on equal terms. Under the British Army Act a soldier’s right of appeal ceases at the General Officer Commanding, whereas an officer can appeal to the Eng. I want by the amendment of which I have given notice to place them on the saint! footing. I may, perhaps, again remind honorable senators that the British soldier is a volunteer, who deliver.ately submits, by enlistment, to the Army Act; but in Australia men are compelled to serve, and, with a view to making- this compulsory provision in some way palatable to the free and independent citizens of Australia,, I am moving my amendments. Wo should not endeavour to make any class distinctions in this connexion between soldiers and officers. There is a strong tendency for officers, and even the Minister to “ rubber stamp “ the acts of their subordinates, and, whether from mental inertia or for some other reason, they seem to think that everything suggested by others is in order. I urge honorable senators to consider the reasonableness and the necessity of providing that if an officer or a soldier rightly or wrongly imagines that he has a grievance he should have the right to appeal right up to the Governor-General. It will be quite open for Senator Gardiner, who, I think, made the suggestion, or some other honorable senators, to move that, in place of an appeal being made to the Governor-General, it shall be made to some special tribunal, such as a Committee of this Senate, which would have associated with it one or more Judges of the Supreme Court. The difficulty, I feel, that would arise in establishing such a tribunal would be the possibility of the voting being on party lines. Owing to that possibility 1 am merely following the Army Act so that officers and soldiers may finally appeal to the GovernorGeneral.
– The honorable senator is going beyond the British Army Act.
– Only to the extent I have mentioned, because the British soldiers are volunteers, whereas the Australians serve compulsorily.
– Before the dinner adjournment I was inclined to oppose Senator Elliott’s amendments, because I thought the soldier had sufficient channels through which to appeal. But Senator Foster has just handed me a copy of the British Army Act, and, after hurriedly reading some of its sections, it occurs to me that any one with a grievance cannot be prevented from approaching the King or his representative. If a subject has the right of appeal to the King, why should we endeavour to curtail that right by Act of Parliament ? Realizing that the appeals that would be made would be few, and that the Executive Council really means in this case the Minister for Defence, I think Senator Elliott’s amendments should be accepted. The right of a person to appeal to the King’s representative holds good here, as does the right of a person to appeal to the King still hold good in Great Britain. I support the amendment.
– I shall be very brief, as I have already stated my objection to the proposed amendments. There is only one instance where a soldier should have the right to appeal to the GovernorGeneral. He has not the right of appeal to the King under the Army Act. My amendment provides for a soldier four Courts of appeal up to the Military Board, or in time of war to the General Officer Commanding, whereas an officer has only two Courts of appeal. For the soldier there is an appeal from his captain to his colonel, then to his brigadier, and then to the General Officer Commanding, and finally to the Military Board. The two cases are not analogous at all. In the case of a soldier, there is no question of supersession in the ranks, and that, generally speaking, is where wrong is done. An officer gets promotion up to a certain stage as the result of examination, and afterwards by selection. For these reasons, I ask the Committee to reject the amendment. We have fairly met the desire of the Committee to proride an effective means for the redress of wrongs, both to officers and soldiers.
Question - That sub-section 2 of the proposed new section be left out - put. The Committee divided.
Majority . . . . 5
Question so resolved in the negative.
Amendment (Senator Elliott’s) negatived.
Amendment (Senator Pearce’s) agreed to.
.- I move -
That the following proposed new sections be added to the clause : - “ 123i. ( 1 ) An officer of the Military Forces or a soldier, prior to making any complaint in pursuance of the last preceding section, shall a entitled to inspect any books, documents, or papers relating to the matter in respect of which he thinks he has been wronged, and may, in any complaint subsequently made by him, state whether or not he agrees with’ the statements set out in any such book, document, or paper.
If the complainant denies or contradicts any such statement or alleges that any documents affecting his case have not been produced for his inspection, thenin the event of the complaint being forwarded to the Minister for submission to the Governor-General, the Minister shall, before submitting it to the Governor-General, direct an inquiry on oath to be held before a Justice of the High Court or a Judge of the Supreme Court of a State as to the truth of the denial, contradiction, or allegation, as the case may be, or as to any other matter relevant to the complaint.
The complainant may, if he so desires, be represented by counsel at the inquiry, and shall have full opportunity of making any statement and of giving any evidence he wishes to make or give, and of cross-examining any witness whose evidence or opinion affects his character or military reputation, and producing any witness in defence of his character or military reputation.
The finding of a Justice or a Judge on any matter referred to him in pursuance of sub-section (2) of this section shall be conclusive.
In time of war the Minister may, if he thinks proper, decline to proceed with the inquiry until the termination of hostilities, but in such case shall direct such facilities as are prescribed to be given to the complainant for the record of the evidence of any person concerned.
If any officer whose duty it is to investigate a complaint shall wilfully and knowingly disregard the provisions of this Act or any regulation for the redress of wrong, he shall, upon proof thereof, be deemed unfit to serve His Majesty in any capacity whatsoever, and his office shall be vacated accordingly.” “ 123j. ( 1 ) If any officer induce or persuade, by means of any promise, threat, representation, duress, or other means, any complainant not to proceed with any complaint or appeal which he may have made to that officer, or of which the officer has knowledge, then, in addition to the same disqualification as is imposed by the last preceding section, the officer shall be liable in any action for damages in the High Court of Australia or in the Supreme Court of any State at the suit of the complainant.
If any two or more officers are jointly or severally concerned in any such promise, threat, representation, duress, or other means, each of them shall be liable to the same extent as if he were solely responsible, and no account shall be taken of any sum or sums recovered or recoverable from any other person by the complainant.
The complainant shall be entitled to recover as special damages in any such action the difference in pay (if any) which the complainant would or might have received by reason of receiving any promotion or promotions, appointment or appointments to which he might reasonably claim by seniority to have been entitled had his appeal been successful, and also such general damages as the Judge or a jury shall consider him to be entitled to recover in respect of any loss or damage to character, reputation, or otherwise by reason of the action complained of.
If after judgment in his favour any complainant is unable to recover from any officer the amount of such judgment he shall be entitled to recover the same by action against the Commonwealth:
Provided, however, that if two or more officers are sued by him he shall not be entitled to receive from the Commonwealth any amount greater than the highest amount which is adjudged to him in any one of such actions.
The Commonwealth shall if the AttorneyGeneral thinks fit, be entitled to be heard in any action brought under this section.
During time of war any such action may be stayed on application to the Court until the termination of hostilities.
Any such action shall (except in time of war) be commenced within twelve months from the time the act complained of occurred:
Provided, however, that if by threat, duress, fraud, or misrepresentation the complainant is prevented or deterred from bringing the action, the time shall run from the cessation of the duress or his discovery of the fraud or misrepresentation.
In time of war tlie action may be brought at any time within twelve months of the issue of the proclamation that the war no longer exists if the officer to bc sued be then within the jurisdiction, and if he be not within the jurisdiction at that time then action may be brought within twelve months from the time at which the officer first comes within the jurisdiction after the issue of the proclamation.
If any member is without means he shall, on application to the Court, be entitled to sue in any such action in forma pauperis and the Court shall make any necessary rules regulating the same.
The right of any officer or soldier to bring an action for damages in any Court of law shall not be limited by the fact that he has been injured solely in his military character or reputation by reason of the act complained of.”
These amendments represent an attempt on my part to codify and perfect what I imagine to be the common law on the subject, and they set out clearly to the lay mind and the ordinary soldier exactly what his rights are. Proposed new section 123i provides, in sub-clause 1, that an officer or a soldier, before making any complaint, shall bc entitled to inspect any books, documents, or papers relating to the matter in respect of which, he thinks he has been wronged, and may state whether or not he agrees with any statement that may be set out in any such book, document, or paper. Sub-clause 2 of the proposed new section states that if the complainant denies: or contradicts any such statement, or alleges that the documents have not been produced for hi3 inspection, the Minister, before submitting his complaint to the Governor-General, shall direct an inquiry to be held before a Justice of the High Court or a Judge of the Supreme Court of the State. In sub-clause 3 there is provision, that the complainant may, if he so desires, be represented by counsel, and shall have an opportunity of giving evidence and of cross-examining any witness. This is a reasonable provision. Sub-clause 4 states that the finding of the Judge shall be- conclusive, and in subclause 5 there is provision that the Minister may, if he thinks proper, decline- to proceed with an inquiry until the close of the war. It was pointed out during the debate that a soldier, might institute inquiries merely to get away from the war. I presume the ordinary procedure would be for the Minister to direct an inquiry to be held on the spot, and for the preservation of the evidence, so that if any of the witnesses were killed subsequently their depositions could be referred to. In sub-clause 6 there is provision that if any officer whose duty it is to investigate a complaint shall wilfully and knowingly disregard the provision of the Act for the redress of wrong, he shall, upon proof thereof, be deemed unfitted to serve His Majesty in any capacity whatsoever. This may seem drastic punishment, but surely, if an officer wilfully neglects his duty in such an important particular, he ought to be put out of the Service. There would be no danger, then, of an officer attempting to neglect his obvious duty.
In proposed new section 123j there is right of action, against an. officer failing to redress wrongs. That is to say, if he induces or persuades, by means of any promise, threat, or representation, any complainant not to proceed with a complaint or appeal, he shall be liable in an action for damages in the High Court of Australia or the Supreme Court of the State. This is merely a codification of the common law. I am satisfied that at present an action for damages may lie against an officer who does this, and it is advisable that the law should be codified so that any soldier may ascertain his rights in this matter. Subclause 2 of this proposed new section refers to two or more officers who may be jointly concerned in any such promise or threat, and sub-clause 3 provides some measure of damage, for the wrong which a complainant may have suffered. If by the illegal action of his officer he h’als been deprived of promotion and if the Judge or jury consider him entitled to recover damages, this sub-clause supplies the necessary’ machinery. Sub-clause 4 contains provision to the effect that if a complainant is unable to recover from an officer the amount of a judgment, he shall be entitled to recover it against the Commonwealth, but there is the proviso that he shall not recover from the Commonwealth any amount greater than the highest amount awarded to him in any one- of such actions; Suppose he proceeded against half-a-dozen officers,, and was awarded £1,000 against each, he could only recover from the Commonwealth £1,000, in the event of being unable to get anything out of the officers. Then, in order to prevent the Commonwealth being prejudiced by any combination or conspiracy for an officer to do a wrong to another, and then for the injured man to bring an action against him with the object, eventually, of claiming against the Commonwealth, there is provision for the Attorney-General to intervene and be heard. Any such action may be stayed, on application, until the termination of hostilities. In subclause 7 of this proposed new section there is a limitation provision to the effect that any action (except in time of war) must be commenced within twelve months from the time the act complained of occurred; but if the complainant is prevented by any threat or misrepresentation from bringing the action, the time shall run from the cessation of such threat or misrepresentation. Sub-clause 8 states that in time of war, an action may be brought at any time within twelve months of the issue of the proclamation that the war no longer exists, if the officer to be sued is then within jurisdiction, and if not, then it may be brought within twelve months’ from the time at which he first comes within the jurisdiction, and after the issue of the proclamation. These provisions are inserted so that there may be no unnecessary delay in bringing an action. It might so happen that a man is hard up, and so in sub-clause 9 it is provided, in strict accordance with civil process now, that a man may sue in forma pauperis: that is -to say, if he is not worth £25, which is the usual amount, he may get a solicitor assigned to him by the Judge. Subclause 10 states that the right of any officer or soldier to bring an action for damages shall not be limited by the fact that he has been injured solely in his military character or reputation by reason of the act complained of. These provisions extend the common law right, as far as I can make out, to a number of cases. If a man suffers wrong to his person or property, that is to say, if he has been sentenced by court martial to imprisonment for fifteen years, when he ought to have been sentenced only to two years, every member- of the court martial is liable to heavy damages. Likewise, if the court martial illegally sentences a man to be flogged, by the common law every member of’ the court martial participating in the illegal sentence is guilty of an offence and liable for damages; but where such sentence by. court martial means his reduction in. rank-, or* dismissal from office, the Courts have held that he has no right to damages. There is a distinction between wrong to property or person and wrong to a man’s military reputation. A man having submitted himself voluntarily to military discipline, ought not to complain of anything done to him in his military capacity. I submit that that principle ought not to apply to Australia, where every person is compelled to serve, and anything that affects his military reputation is bound to re-act on him in his civil capacity. There is no reason, in these circumstances, for such a distinction. It is useless to give the valuable rights conferred by the clause just passed unless we surround them with some sort of legal sanction which- will keep officers administering the Act “ on the rails.” With the exception of the last. I believe that the provisions I propose represent a codification of the common law as it now exists.
– No they do not.
– I think so, and I have studied the law.
– I am surprised that the honorable senator should make such a statement. I shall reply to it when I deal with his amendment.
– My proposal is put forward for the protection of the soldier, and I commend it to the acceptance of the Committee.
– I can only say that if the honorable senator’s amendments were included in the Defence Act there would be very little prospect in future of getting any of our citizens to undertake the onerous duties of officers of the Citizen Forces. I ask honorable senators to read the provisions which Senator Eliott has submitted, and say whether they would be fools enough to put themselves in such a position- that they might be prosecuted and mulct in damages as the honorable senator proposes. There is a fundamental, objection which I wish to take to the amendments. They propose, in the first place, to mix up military and civil law. A Committee was appointed in the United Kingdom’ after the close of the war. It consisted of a number of legal men and included a number of members of the House of Com-: mons, amongst them being Mr. Horatio Bottomley and Lord Hugh- Cecil, two men of very independent minds. After going through the question of military law and civil rights they made, amongst others, the following recommendation in July, 1919:-
We are of opinion that it is undesirable to set up any formal Court of appeal from decisions of courts martial, since those Courts sit and adjudicate in circumstances wholly different from those in which civil Courts exercise their power.
It is not to he thought that courts martial can do anything they please, irrespective of their obligations under the civil law, and irrespective of any fear of the consequences of their action if they exceed their authority. The common law operates here as it does throughout the Empire, and in this connexion I quote the following paragraphs from page 120 of the Manual of Military Law: -
There is a note to this paragraph setting out a number of cases. Then the next paragraph says -
– Is it not possible to codify those provisions?
– That is the common law, and its scope is far wider, and therefore of greater benefit to the individual, than is the scope of the provisions which Senator Elliott asks the Committee to adopt. The honorable senator has said that officers may do all sorts of extraordinary things, and he mentioned a number of things which they might do. I point out that if an officer did the things for which he would be liable under the provisions proposed by the honorable senator, that officer would be liable to be court martialled himself. If, for instance, an officer interfered with or obstructed the production of books or documents for the purpose of substantiating his case he would commit an offence which would render him liable to be tried by a court martial. I take the case of the removal of an officer from command by the General Officer Commanding. Surely in time of war we must leave to the General Officer Commanding, untrammelled by fear of subsequent civil damages, the exercise of his discretion in that regard. The General Officer Commanding is intrusted with the duty of winning a battle or winning a war. If, in the exercise of his discretion, he removes an officer from a command, according to Senator Elliott’s amendments, the officer removed is to have the power of hanging over the General Officer Commanding, it may be for years, the possibility of a prosecution. If such a removal took place in Gallipoli the General Officer Commanding concerned might have had hanging over his head for five years, until he returned to Australia, and perhaps for twelve months after he returned, the possibility of having to meet an action for civil damages when the witnesses essential to support the correctness of his judgment might have been removed by death.
SenatorFoster. - Was it not under similar provisions that Sir Frederick Stopford issued a writ against General Sir Ian Hamilton, and the British Government persuaded him to hold the matter over until the end of the war.
– In that case Sir Frederick Stopford exercised the private right of action which an officer or any one else has under the common law. That was an action between man and man. I can see in the provisions which Senator Elliott has submitted many opportunities for conspiracy. I hope honorable senators will realize that it is proposed that, in the event of an officer against whom damages have been awarded under the honorable senator’s proposals being without funds, the poor old Commonwealth shall be liable for the damages. That is set out in sub-clause 4 of the proposed new section 123j proposed by Senator Elliott.
– Does the Minister suggest that any serious number of officers would enter into conspiracy to commit fraud?
– I can see that two men of straw might institute a prosecution, and agree to divide the “ swag “ afterwards. I have said that if damages are awarded, and the officer against whom they have been awarded has no funds, under the honorable senator’s proposal, the Commonwealth is to be asked to pay for the act of an officer done at the other end’ of the world. I feel sure that if honorable senators examine the amendments which Senator Elliott proposes they will not entertain them for a moment. To introduce two of such provisions into the administration of. our Citizen Army would spell absolute ruin to that Army.We have to call upon citizens to make sacrifices if they take up commissions in the Citizen Forces, and Senator Elliott proposes that we shall also expose them to all sorts of litigation and, possibly, monetary loss. I venture to say that no person will take commissions in our Citizen Forces under such conditions. I ask the Committee to reject the amendments.
Senator gardiner (NewSouth Wales) [10.25].- I think that the Minister for Defence (Senator Pearce) has unduly exaggerated the danger which might arise from the acceptance of Senator Elliott’s amendments. I have read them very carefully, and I consider that they have been rendered almost necessary by the amendment which the Committeehas accepted at the instance of the Minister himself. Take, for instance, the examination of documents which is provided for. Of what use is it to give me the right to appeal, if, at the same time, I am refused the right to see the grounds on which my complaint was turned down? The Minister has himself widened the scope of the Bill at the request of the Committee. As far as the danger of damages is concerned, any officer who injures a person by exceeding his duty has always . been liable to damages. We assume, however, that our officers are carefully selected, and that the danger in question never troubles a man who does not act in excess of his powers. If you, sir, had me ejected from this chamber without justification, you would be liable to damages. In New South Wales one Speaker of the Legislative Assembly had a member of it forcibly removed from that branch of the Parliament. He was sued for damages and he won his case in the Supreme Court, but upon appeal to the Privy Council the position was reversed, and the private member proved victorious. I repeat that any officer who exceeds the powers conferred upon him has always been liable to damages. There is no provision in the amendments of Senator Elliott which would render an officer liable to damages if he had not done wrong. In regard to the question of officers conspiring, I am inclined to think that that is a contingency which is not likely to arise. Nevertheless there have been one or two cases in which a couple of officers have beaten the Commonwealth for many thousands of pounds. The danger of fraud, therefore, is just as great, though no greater, in the Military Department than it is outside of it. Most of the amendments submitted by Senator Elliott are essential, by reason of the amendments which we have already carried.
Senator foster (Tasmania) [10.32]. - The Minister (Senator Pearce) made one or two statements which are hardly borne out under the Army Act. He said that one reason why he objects to Senator Elliott’s amendments, and I am not entirely in favour of them, is because he does not think we ought to mix up civil and military law. Yet there are cases cited in the Army Act in which the aid of the civil Courts has been invoked to override the decisions of military Courts.
– Under the common law.
– No. There was one case in which it was claimed that a court martial had exceeded its authority.
– I quoted that. That was a case under common law.
– I wish to be assured that no citizenin Australia, because of the lack of provisions in our Defence Act, shall be deprived of any of his rights.
– That common law runs throughout the Empire.
– The records show that in some cases the members of a court martial have been held to be liable for damages, just as magistrates are liable for any illegal acts upon the Bench. But Senator Elliott goes farther than does the common’ law as between man and man. Take the case of a court martial which should be constituted of seven members. Suppose that only five members sat upon that tribunal and awarded the prisoner a certain sentence. In such circumstances they would be liable, because the court martial did not consist of the number of members for which the regulations provide. But under the common law an individual officer would also be held responsible. If there be any need for the introduction of clauses of this character into our Defence Act, I am more concerned with the action of an individual officer than I am with the action of a court martial, because, from what Senator DrakeBrockman told us the other night, the actions of the latter tribunals are always reviewed by the legal gentlemen who are attached to the various head-quarters and by the Judge Advocate- General. But very often the action of an individual officer - he may be a company officer or an officer commanding a battalion - is not criticised or reviewed by anybody above him. I have never known of a case in which a senior officer who dealt with a junior officer or a private has had his decision reviewed by any officer above him.
– But a private always has the choice of being dealt with either by his commanding officer or by court martial.
– Quite so.
SenatorDrake-Brockman. - In the case of an officer, all that we can do is to give him a ticking-off. There is not a recorded sentence at all.
– Take the case of a brigadier-general who feels that he has been done a grievous wrong by the one officer who is in command above him. I am not going to say that the officer above him ought to be liable to an action for damages, but I am more concerned with the chance that a man ought to have against an individual officer than I am with the chance he ought to have against a court martial. If the findings of the latter tribunal are properly investigated before the sentence is promulgated, the individual has a better opportunity than he has where he is dependent entirely upon the say-so of an officer.
– The honorable senator is talking about promotions, and is pre-supposing that any man has a right to promotion, whereas under the Army Act no man has that right.
– I am not dealing with promotions at all. The other night I made it quite clear that up to a certain rank promotions are almost automatic, but beyond that rank they are not promotions at all, but selections. The point I was making when the honorable senator interjected was that an officer may feel that certain military action taken against him has prejudiced him, not merely in his military career, but also in his civil life. At present he has no opportunity whatever of righting himself, beyond getting a military investigation under the clause which we have passed to- . night. He has no opportunity of recovering damages from the individual who may have wilfully damaged him. Our own experience must lead us to believe that there have been cases in which, perhaps because of jealousy or of some pre-existing bitterness between two men in the Army, the under-dog has been made to suffer in such a severe and uncalled-for way as to do him material injury in the Army and outside of it. I desire to take away from the individual officer the power to do wrong to another officer or a private without the injured one having an opportunity to obtain redress by law. If the Minister can assure me that in such cases the injured person has an opportunity of succeeding at common law, I would like to know more about it. I can understand the case of Sir Frederick Stopford, who instituted an action for damages against Sir Ian Hamilton because of the statement by the latter that the failure of the British Army in Gallipoli was due to Sir Frederick Stopford shillyshallying on the beach instead of getting to the front line. Sir Frederick Stopford brought a suit for libel against Sir Ian Hamilton upon the ground that the statement in question had not merely affected him as a military officer, but also in his civil capacity, because it had made him appear to be inefficient.
– Did they not call him “ General Stopfor-dinner “ ?
– He did not stop for dinner; as a matter, of fact, he stopped for water. He stopped for water on the beach, and Sir Ian Hamilton said that it was his duty to see that the water was taken ashore with the men when they landed.
– Did he not start to dig in as soon as he landed ?
– No. I think that he was engaged upon the beach in the old familiar movement known as forming fours.
– Can the honorable senator indicate any of my amendments to which he takes objection, and also the grounds of his objections?
– Some of the proposals are too loosely drawn, whilst others go a little too far. For example, the first proposal reads -
An officer of the Military Forces, or a soldier, prior to making any complaint in pursuance of the last preceding section, shall be entitled to inspect any books, documents, or papers relating to the matter in respect of which he thinks he has been wronged.
He may consider that he has been wronged by an entry in the private diary of the General Officer Commanding.
– He could not be wronged by that.
– In a preceding provision we have laid it down that if an officer thinks .he has been wronged he shall be entitled to do so-and-so.
– But he could not possibly know what was in his general’s private diary.
– The general’s batman might have told him.
– If the batman had access to the general’s diary he would be distinctly in the wrong.
– Whilst any books, documents, or papers of an official character should be made available to an officer who has been dealt with-
– There would be a grave danger if we made my first proposal apply only to books, documents, or papers of an official character.
– If the honorable senator’s proposal is that documents of an unofficial character shall be inspected by an officer or soldier, I cannot go with him. That is what I meant when I said I thought some of the proposed new sections were loosely drawn.
Private or unofficial papers should not be available to an officer. If a general wrote to another general a private letter regarding some other officer, and, as a consequence, certain action was taken, I do not think it should be producible on demand.
– Do you mean that a general may libel an officer, who shall have no redress?
– Certainly not. Probably General Elliott could recall numbers of cases where he has said to a junior officer, “ So-and-so is no blessed good.” That might only be his opinion.
– That is the opinion that counts.
– A general might do a grave wrong to an officer by saying that he is no good.
– The honorable senator, as a senior officer, would be entitled to his opinion, but if what he said was carried back to the officer referred to, does the honorable senator think that officer should be able to go for him for damages, seeing that he was only spoken about in a military sense? In the same way the honorable senator may have said about another officer that he was a “ shickerer,” when he was not. If that officer could come at the honorable senator for something said in private conversation to another officer of equal rank, how would the honorable senator like it? I do not think that man should have a claim against him.
– The honorable senator’6 time has expired.
– It is a common principle of the law of libel and slander, that in our daily lives we must not speak falsehoods of any one, because if the person spoken of thereby suffers damage he has an action against us.
– I was not suggesting that you spoke falsehoods. Your speaking the truth might lead the officer mentioned to think he had suffered wrong.
– No officer has any business to speak in that way of another .officer, unless he does it in the course of his duty. If his duty required him to make an unfavorable report on an officer, that officer should, in the terms of our regulations, be informed. If the report is in writing it is laid down most specifically in the regulations that it must be shown to the officer concerned in order to allow him to initial it, and give him a chance to have the matter put right at once.
– Would you do that in the case of a soldier, too?
– A man suing has to show damage. That, is the ordinary law of libel. If it can be shown that as the result of a bad report by an officer a private has been damned for the rest of his career, surely he is entitled to some redress.
– If, on the only two or three occasions on which you had known a junior officer intimately you were all “ shick “ together, or the other officers were “ shick “ and you happened to see them and in the course of your duty you made a report on that man which was to his detriment, do you say you ought to be responsible for damages?
– If my report in any way reflected on that officer I would be bound by the regulations to show it to him before sending it in, and let him initial it.
– Have you ever told an officer that he was “ no so-and-so good to you” and that you “didn’t want him”?
– Under this clause there is nothing to prevent me telling an officer privately, in my tent, what I think of him.
– Have you ever done that in front of your own staff ?
– No. I do not think any officer has the right, in fact, he is forbidden, to make derogatory remarks about any officer, or even a noncommissioned officer, in front of his men.
– I said in front of your staff, your brigade-major, for instance.
– Even then, before that officer would have an action for damages against you he would have to show that he had suffered damage as the result of those words, and it would be very difficult to do that in the case the honorable senator suggests. An officer cannot have an action for damages unless he can connect the derogatory words, or writing, with some loss. These provisions’ in no wise attempt to extend that provision of the law of libel. If Senator Foster will point to any one provision which even bends in that direction I shall be glad to amend it. My proposal seems to have struck a species of panic into the heart of the Minister, but I ask him, and other honorable senators, to consider calmly each of my proposals separately, and see whether persons guilty of the acts which are aimed at deserve to be protected at all. Every one of these provisions is aimed at a distinctly wrong act. Every act which these provisions forbid, or prohibit, is not the act of an officer and a gentleman, and any officer who commits an act which is not the act of an officer and a gentleman should be punished as he deserves. Every single act referred to in my proposal deserves condemnation.
– These proposals will cause a great deal of discussion amongst soldiers’ organizations, and for that reason, particularly as they are put forward by an officer of Senator Elliott’s experience and reputation, we should give them the fullest consideration. I am particularly against sub-clause 2 of the proposed new section. It does not say the Minister “ may “ take action indicated; it says he. “shall” do so. It directs the Minister to invoke the aid of a High Court Judge or Judge of the Supreme Court of a State iu a matter which it should not be necessary to submit to a judge at all.
– It is only a question of fact as to whether there is any document missing, or any lying statement.
– I have seen a report sent back to an officer in Egypt from an officer out in the desert, in which a number of Australian citizens had the letters “N.B.G.” opposite their names. Under this amendment any one of these men would have an action for damages.
– In the Minister’s amendment, which we have already adopted, certain lights of appeal have been given to officers and men. Senator Elliott now suggests that, if a man thinks there are letters in existence which he is not allowed to see, the Minister must direct a Judge to find out who is telling the truth. That would be prostituting, the work of the Judges.
– Is the character of an officer then of no value?
– Of course it is of value.
– The Judge’s duties are defined by the Judiciary Act. I could not direct a Judge to make an inquiry.
– The Judges are appointed to try questions of law, and are only diverted from that work when they are appointed with the powers of a Royal Commission.
– That is practically what’ this would be.
– Then the honorable senator is asking that the Minister should appoint a Royal Commission in every case to inquire whether an officer’s complaint that certain documents were not forthcoming was justified or not. The whole thing is too frivolous. It would be different if the honorable senator proposed that a Royal Commission should be appointed only where an officer made a complaint to the Minister, and asked for a Royal Commission to ascertain whether certain allegations made against him were justified or not, seeing that they had been detrimental to his character either as an officer or as a man.’ We should not ask a Judge to do work which could be done by a junior clerk who searches the records.
Sub-clause 4 of proposed new section 123i provides that “ the finding of a Justice or a Judge on any matter referred to him shall be conclusive.” I do not see the use of that. The Judge might say that there are more papers which ought to be produced; but, if they’ are not there, it really does not matter whether the Judge is of one opinion or another.
– Surely the Commission would have power to order the production of all papers that could be found.
Does the honorable senator suggest that the Judge should have the powers of a Royal Commission?
– As a lawyer, the honorable senator should know that the findings of Judges are never conclusive. Sub-clause 6 sets forth that if any officer whose duty it is to investigate a complaint disregards the provisions of the Act or any regulation for the redress of wrong, he is to be deemed unfit to serve. By whom is he to be deemed unfit? Not by a Justice, or a Judge, for that individual is done with in subsection 4.
– The Judge. in his finding, would decide that.
– I cannot follow the force of the honorable senator’s proposal. He offers no provision under which a Judge may find whether an officer has wilfully and knowingly disregarded any provisions of the Act. I regret that I cannot support the amendment.
.- The points raised by Senator Foster are not directed against the purposes of the amendment, the effect of which is to secure justice. At the request of the Minister for Defence (Senator Pearce), I submitted my proposed new section to his own draftsman to be licked into shape, and he now criticises their draftsmanship.
– Where is power derived whereby the Minister for Defence may order Supreme Court Judges to hold an inquiry?
– That is constantly done by the appointment of Royal Commissions.
– Only with their consent.
– There is no provision in my proposed new section whereby the Minister shall order a Judge.
– The word “ direct “ is used.
– If the term is objectionable, I would be glad if the draftsman would suggest the pro-» per word. In cases of grave complaints against officers that they have suppressed documents which are vital in their effect upon a man’s character, there ought to be some tribunal. An inquiry can be directed by the Minister, and such inquiry is usually conducted before a Military Board. I contend, however, that the investigations should be made by a Judge who is accustomed to weigh evidence.
– The honorable senator is not dealing with the circumstances of an individual who has actually suffered serious injustice, but he is proposing to give to every officer and man who may think himself ruined opportunity to apply for a tr: bun al whereupon the Minister must appoint a Judge of the Supreme Court.
– There will not be many officers or men anxious to go to the expense of such an investigation merely because of a fad.
– If a soldier cannot have a wrong redressed without having to put his hand into his pocket, this Parliament should do something to provide means for him.
– Then if the honorable senator knows of any better way-
– The common law provide? a much better method.
– The common law applies, 1 admit; and I urge on the Minister that he instruct his law officers to codify that law so that the public may understand it, and not be obliged to pay high fees to lawyers in order to have the law pointed out to them. I have endeavoured here to produce something in the natura of a code, and tlie proposed additional sections deserve the serious attention of the Committee.
.- The Minister for Defence introduced an important amendment to-day which may certainly be said to be the outcome of representations made in the course of the discussion of this measure. Obviously the Department and the Minister were sufficiently impressed to bring forward the amendment which has been accepted. I point out that sub-clause 1 of the proposed new section 12 3i really forms a corollary to the Minister’s amendment; for what is the use of giving the right of appeal unless at the same time the individual concerned is afforded an opportunity to procure the evidence which will justify it? That is one reason, first, why hi Committee should accept Senator Elliott’s proposals, and, secondly, why it should deal with them piecemeal, and not reject the whole because certain portions may not be convincing. Senator Foster logically attacked sub-clause i, but I differ from him. When the Bill waa introduced no right of appeal was provided. The lack of such right is a long-standing grievance. When this very matter was first debated in the Senate I advanced what I considered a proper suggestion, namely, that a Committee appointed by this Chamber should represent a final Court of appeal. Had honorable senators possessed a proper estimate of their own importance my proposal would have been adopted. I did not press it in the form of an amendment,, however, because I perceived a spirit of hostility thereto. A practical suggestion lias been submitted to the Committee by an honorable senator whose services, particularly in connexion with this Bill, have been of such assistance to the Military Department particularly that a clause has been introduced by the Minister which, to some extent, gives effect to his suggestion. A little while ago a provision similar to this was turned down by the Minister for Defence, who lightly brushed it aside; but when Senator Drake-Brockman took up the cudgels on the question of the right to appeal in some form, and one honorable senator after another, including the military members of the Senate, brought their sense of sweet reasonableness to bear, the Minister gave way. This is a reasonable proposition, not only as to appeals, but to give the individual concerned the right to peruse official documents or evidence concerning his case. It does not give a soldier the right to peruse private diaries or documents that have no bearing on the appeal which he has lodged; it is only to allow a soldier who considers that he has been wrongfully treated to have access to the necessary documents to prove his case. An officer or soldier submits his complaint in accordance with the regulations, and makes out an unanswerable case only to find out that the officer has either turned it down, or has reported it to his- superior officer, where the matter drops. These amendments provide that the individual shall have the right to ascertain the nature of the report.
I do not agree with sub-clause 2 of the proposed new section 123i, because the machinery provided is too cumbersome.
– What does the honorable senator suggest? I am quite prepared to allow cases to be dealt with by a police magistrate.
– I am in favour of cutting the legal fraternity out of it altogether, because I do nob think they should have anything to do with military operations. I understand that these amendments have been moved merely to give effect to those which the Committee has recently carried.
– How could cases be settled unless there was some tribunal before which men could appear?
– The machinery is altogether too weighty. Our High Court Judges are too fully employed with other important work to be called upon to deal with the supersession of officers. We have passed an amendment to give officers,, non-commissioned officers and men the right to appeal through different channels, and we cannot legislate for all the details that may arise. We have to recognise that in endeavouring to legislate for exceptional cases we may weaken the Act, and it would be very difficult to insert a provision dealing with untruthful evidence, which could be regarded as an exceptional case. I am in accord with the intention of Senator Elliott, who wants only a fair deal, but the suggestion embodied in his amendment, that an inquiry on oath should be held before a Justice of the High Court or a Judge of the Supreme Court of the State as to the truth of the denial, contradiction, or allegation, as the case may be, or to any other matter relevant to the complaint, is getting somewhat wide of the mark. Tonight we have passed an amendment to give the soldiers the right of appeal through different channels, and I think we should allow this measure to be in operation for a few years and then see by experience if this particular amendment is necessary. Senator Elliott must realize after his close contact with military operations that there is a good deal of petty jealousy even among the high officers, and it is quite possible for injustice to be done. I do not think, however, that he is right in anticipating that he can bind them down by an amendment of this character. He is anxious to provide that by the time the case reaches the GovernorGeneral there shall not be any possibility of an untruthful statement being used against a man.
– That is so.
– Much as I agree with the intention of the honorable senator, I do not think that it is practicable to incorporate some of the provisions he suggests in the Bill.
– I must draw the honorable senator’s attention to the fact that the time allotted to him under the Standing Orders has expired.
– It will be remembered that when this Bill was in its secondreading stage, I agreed with my gallant and distinguished friend, Senator Elliott, that some provision should be made for a Court of appeal or for some final appeal, having regard to the altered circumstances of our Forces to-day. The Minister for Defence (Senator Pearce) . agreed that something should be done, and he was courteous enough to submit to me the proposal he intended to bring before the Committee. I agreed with his proposition, and, therefore, I am not going back on my undertaking to the Minister by supporting Senator Elliott’s amendments, although I agree that some are commendable. We have already provided in > the Bill for sufficient protection against injustice, and Senator Elliott is endeavouring to supplement the common law rights that we already possess. Personally, I think those rights are quite sufficient to protect members of the Military Forces.
– But do all members of the Military Forces know what their . common law rights are?
– Perhaps a private does not; but if he thinks he has a grievance or has been unjustly dealt with he can consult a solicitor.
– He would have to consult a solicitor to understand what this clause means.
– Yes, I can see no particular advantage in incorporating this amendment in the Bill, although there is a good deal in it that is worthy of consideration, but I cannot get away from the undertaking which I gave to the Minister.
– A man may have to go to the Privy Council to establish his case.
– Possibly ; but, generally, if he desires, he can invoke the aid of the ordinary Courts. While agreeing with practically the whole of the ideals for which Senator Elliott is striving, I shall oppose the incorporation of his proposals in the Act.
– The Minister might agree to sub-clause 1 of Senator Elliott’s proposed new section 123 1 if altered to read as follows
An officer or soldier of the Military Forces, upon having made any complaint in pursuance of the last preceding section, shall be entitled to inspect any official book, document, or record relating to the matter in respect to which he has made such complaint, and may, in any complaint subsequently made toy him, state whether or not he agrees with the statement set out in any such book, document, or record.
If a man puts up a complaint which he believes can be substantiated, he ought to be allowed to inspect the records dealing with his own case.
– Who is to be the judge as to whether they relate to his complaint ?
– He certainly cannot be the judge in that matter; but, as the Minister has agreed that a man should have the right of appeal, his record ought to be made available to him.
– I understand that is done unless there is good reason to the contrary. In any case, if a document were refused, the man would be entitled in his appeal to draw attention to the fact. That is the ordinary right of any person who submits a complaint.
– In view of the statement made by the Minister I shall not pursue the matter any further.
– An officer who was a member of the Permanent Forces has told me that during the war a complaint was made against him and he was allowed to inspect the official reports and confidential documents relating to the matter, but as certain of the complaints were made by civilians - and it was upon these he considered he was harshly dealt with - they were regarded by the Department as not being official documents and he was not permitted to inspect them. In order, to get justice he appealed to the Supreme Court, whereupon all those concerned climbed down and paid him damages.
– The instance quoted by the honorable senator shows that each man has a remedy at common law.
– A permanent officer of the Defence Forces might have a fairly good knowledge of the military law, and perhaps of the common law, but the average citizen or soldier would not have that same knowledge.
– Neither would he have knowledge of the amendment which the honorable senator now proposes. He would be obliged to employ a solicitor to tell him his rights under the honorable senator’s proposal.
– My proposal if accepted would find a place in the Defence Act, and any officer seeking promotion would attend lectures in which the instructional staff would acquaint him with the rights it would give him.
– Each man has the right to make an application to inspect the documents relating to his case and to draw attention to any refusal to allow him to inspect them.
– That may be the case, but I am endeavouring to show how necessary it is for the benefit of our citizen soldiers to codify the vast body of common law which exists in numbers of cases and which can hardly be obtained by any person who is not a lawyer within reach of a law library.
Amendment of the amendment negatived.
Amendment (Senator Pearce’s) agreed to.
– I do not propose to pursue the matter further.
Clause, as amended, agreed to.
Schedule verbally and consequentially amended and agreed to.
Clause 48 reconsidered and consequentially amended.
Title agreed to.
Bill reported with amendments.
Motion (by Senator E. D. Millen) put -
That so much of the Standing and Sessional Ordersbe suspended as would prevent the Bill being passed through its remaining stages without delay.
– I understood from the Minister for Defence (Senator Pearce), when we were dealing with the Bill in Committee, that its remaining stages would not be carried through immediately. I should now like to know the position.
– I gave an undertaking that we would keep possession of the Bill. That means the third reading will be kept in the possession of the Senate.
Question resolved in the affirmative.
– I understand that I cannot at this stage move to recommit the Bill to consider a certain clause. I seek your direction, Mr. President, whether I can move this as a direct motion now, or must wait until the motion for the adoption of the report is submitted.
– The Minister may move to recommit the Bill on the motion that the report be adopted.
Motion (by Senator Pearce)proposed -
That the report be adopted.
Motion (by Senator E. D. Millen) agreed to -
That the Bill be recommitted for the purpose of reconsidering clause 15.
In Committee (Recommittal) :
Clause 15 (Resumption by apprentice of service under articles).
– It is necessary to recommit this clause, in order to incorporate in sub-section 3 of section 40b the amendments agreed to in respect of clause 15. Sub-section 3 is a new sub-section added after amendments effected by paragraphs a, b, and c, and does not become subject to the consequential alterations made in these paragraphs, unless the alterations are expressly made in the sub-section. Apparently, it was thought at the time that the amendments made by paragraphs a, b, and c would also extend to sub-section 3. These amendments were in respect of the apprenticeship question. We added the words “ or articles of service,” but some provisions in the Act were not before the Committee at that stage, and we now need to amend them accordingly. Therefore I move-
That after the word ‘‘apprenticeship” (twice occurring), the words “or articles of service” he inserted.
Amendment agreed to.
Clause, as further amended, agreed to.
– -May I, at this stage, move for the recommittal of another clause?
– The honorable senator cannot move for the recommittal of any other clause at this stage. The Bill was recommitted for the special purpose of reconsidering clause 15.
Bill reported with further amendments.
Question - That the reports be adopted - -proposed .
. I move-
That clause 11 be recommitted for the fur ther consideration of proposed new section
This proposed new section slipped through while my attention was concentrated on proposed new section 21aa.
– It did not slip through Committee. I drew attention to it, and the Committee was aware of the position. If the honorable senator was otherwise engaged the Committee was not.
– But it was stated at the time that I would have an opportunity of moving to recommit the Bill for the reconsideration of this proposed new section. My object is to draw attention to the preference which outside officers have over Australian officers. Section 14 of the Act provides that no person shall be appointed an officer–
– Order! The honorable senator is not entitled to discuss the question unless the clause is in Committee again. He is only entitled, at this stage, to give reasons why the clause should be recommitted.
– I am stating my reasons, and I want to point out–
– Order ! The honorable senator is arguing why certain provisions should be inserted in the Bill. He may not do that on the motion for the recommittal of a clause.
– Very well, I shall start afresh and’ will endeavour to meet your wishes. I was going to say that under section 14 of the Act it is provided that Australian officers shall not be promoted until they pass an examination, but some exception is made in the case of officers of the King’s regular military forces, who were exempted from examination. Clause 21 is designed apparently
– Order ! The honorable senator is entitled to give reasons why, in his opinion, the clause should be recommitted, but it is not permissible for him to anticipate the discussion of the clause in Committee. I cannot allow a desultory discussion to be carried on.
– I had no intention, sir, of transgressing your ruling; but it is difficult to avoid going into details in stating the reasons why I think the clause should be recommitted. I shall, however, content myself with the general statement that the clause should be recommitted because its effect, combined with that of section 14, is to give to Imperial and other outside officers a preference over Australian officers. Imperial and other outside officers will be exempt from examination,” and will depend for their promotion merely upon a recommendation of the Military Board, whereas Australian officers will have to pass an examination.
– I shall certainly oppose the recommittal of the clause. I dissent from the statement made by Senator Elliott that it was not discussed in Committee. If my memory serves me rightly, Senator Drake-Brockmanraised a question as to its effect, and I gave at some length the reasons for it. Senator Elliott has altogether misstated the facts regarding the clause. It does not differentiate between Australian and other officers. That, however, is a question which I may riot debate at this stage. I remind the Senate that I moved the recommittal of certain clauses only to make amendments which were consequential upon those made in Committee at the instance, not of the Government, but of private senators. I had to move for the recommittal in order to give effect to the will of the Committee. This clause was fully debated, perhaps not by Senator Elliott, but by others in Committee. The records show that it was “ debated and agreed to.”
– Even if the clause was debated at length, I think Senator Elliott is justified in moving for its recommittal if he thinks that it may be further improved. I should very much like to hear his views as to the combined effect of the two provisions he has mentioned, and I do not think the Minister will lose anything by agreeing to the recommittal of this clause. Senator Elliott asks that an aspect of it, which he thinks has not been sufficiently discussed, should be reconsidered. His position to-day may be that of any other honorable senator to-morrow, and on the general ground that he should be given an opportunity to state his case, I am prepared to support his request. The Senate should always be ready to protect the rights of individual senators. I shall stand solidly for the principle of free dis cussion, which, in this case, can be secured by Senator Elliott only by the recommittal of the clause. If Senator Elliott’s reasons for proposing an amendment of the clause are not acceptable, we shall not debate them in Committee, so that very little time will be lost.
Question - put. The Senate divided.
Majority . . . . 6
Question so resolved in the negative.
Question resolved in the affirmative.
Sitting suspended from 12.15 to 1.15 a.m. (Friday).
In Committee: Consideration resumed from 27th April (vide page 7775).
Clause 10 (Power to appoint Air Force districts, &c).
– This clause makes provision for dividing up the Air Force into districts, groups, and areas. I take the opportunity of saying that when, later on, we come to the clause which incorporates the British Air Force Act in this Bill, I will direct the attention of the Committee to it, and a discussion may take place upon it if honorable senators so desire.
Clause agreed to.
Clause 11 agreed to.
– I move -
That the following new clause be inserted: - “ 11a. In the first appointment of officers, preference shall be given, in the case of equality of qualification, to persons who have served with satisfactory record in any Expeditionary Force raised under the provisions of the Defence Act.” ‘
It will be seen that I have slightly altered my amendment as circulated to cover Expeditionary Forces such as that to New Guinea other than those covered by the clause as first submitted by me.
– The honorable senator’s proposal is to give preference to all the men of the Expeditionary Forces, and not merely to those who were in the Air Force ?
– Yes, a general preference to members of the Australian Imperial Force and other Expeditionary Forces raised in Australia. The proposed clause is in accordance with what I understand is the general policy of the Government
– It is the same principle as that embodied in the Defence Act.
– That is so.
.- What am I to understand by the use of the words “ In the first appointment of officers “ in the proposed new clause?
– The time when an officer is first appointed.
– I oppose the amendment, on the ground of its injustice. We are considering a Bill which will be the Air Defence Act of Australia for many years to come. There are a great many young men in Australia who were not sufficiently old to have the opportunity of going to the Front during the war, and, in my view, it is an absolute injustice to give a preference to any one against those young men. If it were a question of preference as between two men who had equal opportunities, it should certainly be given to the man who went to the Front. But what is proposed is that a preference shall be given to a man who had the opportunity of going to the Front and went, against men who had no opportunity of going to the Front, but who would have gone if they had had the opportunity. That is an injustice. I am not prepared todo that.” I consider the proposal of Senator Elliott from two points of view - justice to thegeneral community and the efficiency of the Air Force. If, of twomen who apply for a position in the Air Force, one is more fitted for the positionthan the other, he should have it. I direct attention to the fact that our Constitution almost compels us in our legislation to see that there shall be no preference given to any one or any section in Australia.
– The honorable senator believes in preference to unionists?
– That is not preference, because all may become unionists. Under this proposal appointments in the Air Force will be closed for a considerable time to come to many who might be highly competent to fill them.
– Are there not age limitations to an appointment to the Air Force which will meet the honorable senator’s objection ?
– Yes, there are. The retiring age is 40 years.
-If to-day we have 200,000 returned men fit to take these jobs they should have them, but in ten years time we may have another 200,000 men better fitted for the jobs, and we are being asked deliberately to legislate to shut them out.
– No, because the proposed new clause provides for equality of qualification beforepreference is given.
– Other things being equal, there is to be preference to returned soldiers, but if the qualifications of applicants are not equal the man best fitted for the job is to get it?
– If two applicants are equal, and one is a returned soldier he will get the job.
– If that is what is provided- by the proposed new clause my opposition to it is to some - extent disarmed. We have to remember that . what we do here we do for the whole community. No matter what our desire may be, to do the right thing by a section who have done well by us, I think we should do it directly as a reward for their services, and not indirectly in a way which involves injustice to others. If appointments to the Air Force are to be by merit, and an inferior returned soldier is not to displace a superior man who had no opportunity of going to the front, I shall not press my objection to the clause .
– Will the new clause cover Australians who served with the British Forces?
– The purpose of the proposed new clause is to give preference in appointments to the Air Force to returned soldiers, other things being equal.
– In case of equality of qualifications.
– Exactly. The danger anticipated by Senator Gardiner of the impairment of the efficiency of the Air Force as a result of the clause does not therefore arise. We have indorsed the policy of preference to returned soldiers, all things being equal, for many positions in Australia. No one will suggest for a moment that because a man participated in. the great war he should be given preference to an applicant for the same position possessing superior qualifications.
– I confess I do not understand what honorable senators are after. I am told that the proposed new clause will not give preference to returned soldiers unless their qualifications are equal to those of other applicants.
– That is so.
– That is not preference to returned soldiers and why should we say. that it is. I believe that the returned soldier’s view of the matter is that if he can do the job he should have it without any question of his equality with any one else. In our Commonwealth legislation we are prevented by the Constitution from discriminating between different parts of the Commonwealth, and the same principle should prevent us from discriminating between individuals or different sections of the community. That aspect of our legislation has not so far been given much attention, but it will yet have to be thoughtfully considered. I realize that the debt of Australia to the returned men can never be paid, and compensation in the way of preference in employment is only a pretence of paying it.
– The honorable senator is in favour of preference to unionists ?
– The difference between preference to unionists and returned soldiers is that the unionist in a particular occupation spends his time and money in improving the wages, hours, and. conditions of his occupation. Any one who desires to engage in the occupation may enjoy the advantages secured by the labour and money of the unionist. We do not legislate against any one section or any one man, because all can enjoy those advantages simply by joining the union. If, however, we select a particular section of the community and propose to reward them for what they have done - and I doubt whether any one appreciates more than I do what was done by our. soldiers - by giving them advantage or preference in employment, we violate the principle of the Constitution, which is opposed to preference for the benefit of one section which is at the same time an injustice to another section of the community. For that reason I am against the amendment. The remarks of Senator Payne almost convince me that Iam not altogether on the right track, and I should like to know from Senator Elliott whether the view I take of his proposal is a correct one.
– The view I take of the incidence of this amendment is that it will give preference to those airmen already in Australia who have had practical experience at the Front. Those employed at the inauguration of this scheme of air defence will not only be the most efficient that can be obtained, but, from the standpoint of economy, will cost the Air Force less than will the men who have to learn. I take it that the intention of the amendment is to endeavour to lay down a principle by which the chiefs of the Air Service shall be instructed that if there is an airman of experience in the war available, he shall have preference over a man who has not had that experience, and that, I think, is quite right. I do not think it will be long before a good many accidents will occur if amateurs are put in charge of the flying portion of our defence. We hear of machines crashing; and of other accidents, and, for the longevity of the aeroplanes we have, it will be much better to employ pilots with actual war experience than those who have to gain their experience at the country’s expense, and probably at their own.
Proposed new clause agreed to.
Clause 12 (Transfer and attaching to Air Force of members of Naval and Military Forces).
– This is self-explanatory. Senator Elliott has given notice of an amendment, but I ask the honorable senator not to press it. Practically the three Services are concerned in the matter, and at the present time negotiations are proceeding between the Naval and Military Board, and the Air Council as to safeguarding of the rights of the respective Services. Senator Elliott may rest assured that both the Navy and the Army are quite qualified to see that the rights of their respective members, when temporarily loaned to the Air Service, are safeguarded; otherwise, transfer will be extremely unpopular. Both Boards are quite keen in this matter; and, as a result, regulations will be drawn up probably on the lines which Senator Elliott proposes. The Attorney-General’s Department advises me that it is better to have this matter dealt with by regulation than in the Bill, and I promise the honorable senator to see that the interest of the two other Services are safeguarded in the way he suggests.
– On that assurance of the Minister I do not propose to proceed with my amendment. The point I have in view is that the Air, Service is a new Service, and an officer may transfer, and, naturally, as the Force develops, get rapid promotion. He may lose his nerve, but he may become a colonel, or whatever the office may be termed, and re-transfer with his new rank. That I wish to guard against ; but, as the sister Forces are alive to the danger which is to be provided against by regulation, I am satisfied to let the amendment go.
Clause agreed to.
Clause 13 agreed to.
Clause 14 (Appointment does not create civil contract).
, - In the very early stages of air development,, following faithfully the lead, as we always do, of Great Britain, the system was that only commissioned officers were permitted to fly. I should like to know from the Minister (Senator Pearce) whether we have got away from that, or whether that system still prevails - whether everyone who desires to learn the whole business is permitted to do so. Four years ago, probably, only commissioned officers were permitted to go up.
– The mechanic goes up, and he is not a commissioned officer.
– But the mechanic is never permitted to have control of the machine.
– Is it not correct to state, not merely, that only a commissioned officer was allowed to take charge, but that when a man was fit to take charge of a machine, he became a commissioned officer ?
– That is just the question I wish to discuss. My idea of the use of the flying machine for war purposes is very much like my idea of the use of the quick-firing or heavycalibre gun, namely, that only a sort of exclusive class is to be permitted to Lake charge, in that they must bo commissioned officers.
– The commission is a guarantee of efficiency in these technical matters.
– It is like an engineer’s certificate.
– I know all about that. Let us take the man who, for actual practical work- in handling a machine, has all the qualifications, but for being a commissioned officer has- very few; there is then a’ distinct loss to the community, for he simply cannot get a commission. I realize, of course, that mechanics have to be taken up; otherwise, if something goes wrong’, a commissioned officer, though very highly trained, is not so expert as a mechanic in, repairing work. My own opinion isthat a non-commissioned officer or private may fly a machine just as well as a general or any other officer. The idea that a clause in the Bill, or a custom in a Department, shall permit only certain people to take control is altogether wrong. We have to realize that flying machines are not like military companies. If only commissioned officers are to have charge when we have hundreds, or it may he thousands, of machines, there will be thousands of commissioned officers, and that point is worth considering. We shall be using flying machines much as we have used cavalry in the field; there will be air squadrons, and to contend that every man in charge of a machine shall be a commissioned officer is almost unthinkable. It is in my mind that that is the condition that obtains at the present time, and it is unwise and detrimental to the Service. When these flying machines become as plentiful, as we hope they will, if the preparation for war is to continue, we shall be in the absurd position of having more commissioned officers in the Air Service than in all the other Services put together.
– There is nothing in the Act that has the effect you suggest.
– I am glad to have that assurance, but I know there is something in thecustom of the Department which has brought effects of the kind. Quite a number of excellent men have never had a chance of advancement; they have never had a chance of developing their ability in charge of a machine. I do not say there has been no chance of promotion to the rank of officer, but such chances are very rare; and it is an absurd proposition that only officers shall be allowed to take charge of machines.
– Although that line of argument may be applicable to the next clause, it does not apply to this clause, which only provides that appointments do not create a civil contract.
– Yes, I think I am a bit astray:
Clause agreed to.
Clause 15 - (1.) Subject to sub-section (2.), a person shall not be appointed to be an officer in the Air Force or promoted to any higher rank therein unlesshe has passed the prescribed examination for the rank to which he is appointed or promoted. (4.) The requirements of ‘this section may be dispensed with by the Governor-General in the case of persons who are officers of His Majesty’s Regular Air Force. ….
– I think that probably Senator Gardiner has been led astray by applying to the Air Service his knowledge of the principles adopted in the Military Service.
– As to the permanent officers in the Military Service, there is only one gateway, and that is through the Military College. In regard to the Air Service, however, there is no such provision. Officers may be provisionally appointed, but before their appointment can be confirmed, which must be within six months, theyhave to pass the prescribed examination. In that prescribed examination they must, amongst other things, show their ability to fly a machine. The analogy with the Military Service is not a correct one; it should be rather with the Mercantile Marine Service. That is to say, a man may commence as a fireman, become a greaser, and eventually, by stages, chief engineer. But the difference between the engineer and the fireman or greaser is that the engineer, of whatever grade, has charge of the engines and the direction of the propulsion of the ship. A man may become a mechanic, but, if he wishes to become an aviator and drive a machine, he must pass the necessary examination, and on passing, he becomes a commissioned officer. It is not that the commissioned officer gets the right to fly the machine, but the fact that he can fly it confers upon him the right to become a commissioned officer.
– This clause seeks to perpetuate the injustice which is contained in our Defence Act, and to which I desired to refer when I moved the recommittal of the Defence Bill. In connexion with the appointment of officers’ in the British Army, it is well known that when a boy fails in his examination for entrance to the University he is usually recommended by his schoolmaster to try for admission to Sandhurst.
– I thought thathe was advised to go in for the Church.
– No, because the clergy also are required to go through the University. I see no objection to dispensingwith an examination in the case of persons who are officers of His Majesty’s regular Air Force, and who have passed an examination for the corresponding rank. Suppose, for example, that an officer of His Majesty’s Air Force has passed the examination for captain, there is no reason why he should be re-examined here for the rank of captain. But I strongly object to the proposal to allow the Military Board to dispense with all examinations in the case say, of a regular second lieutenant who may come out here and get an appointment. I suggest to the Minister that the clause should be limited to the extent of dispensing with examinations only where the appointments are to positions of corresponding rank. If before he comes out here a captain has passed his examination for the next rank, there should be no objection to admitting him to that rank without further examination. But beyond that I absolutely decline to
– The honorable senator suggests that the clause opens up avenues to favoritism?
– Otherwise I do not know what can be its object.
– I can give the honorable senator a very good reason for it, and one which he has- quite overlooked.
– At any rate, I am not prepared to assent to the clause in its present form.
The point which Senator Elliott has overlooked is that our Air Force is not merely a military Air Force; it is ako a Naval Air Force. It is true that during the late war we had an Australian Air Force as a military wing, and that its members did exceedingly well, and greatly distinguished themselves. But we had absolutely no Naval Air Force whatever. Now it is proposed that our Air Force shall provide for both the military and naval sections of our defence. It- is obvious that at its inception we shall require to obtain officers from the British regular Air Force. There is one such officer here upon the Aif Board - I refer to Wing-Commander Goble. “ He is an Australian by birth, but he is a member of the British regular Air Force.
– He will have passed his examination, no doubt.
– Not for the rank which he holds at present. For a period at least, we shall need to obtain other British regular officers for .our Air Force upon the. naval side. We do not anticipate that we shall require to secure any such officers upon the military side. What .is the position to-day? We go to England and ask an officer to come out here. Let us suppose that he holds the rank of captain. Our rate of pay for a captain is no higher than is the rate of pay in England. Yet we ask him to cut himself adrift from the .Forces there, to lose his opportunities of advancement, to come out here for two or three years in order to suit our convenience, and then to return to the Old Country and take his chance. In the early stages of our military training we found that if we wished to obtain- efficient British officers who were worth having we must give them one step, and sometimes two steps, up in rank to compensate them in some degree for’ the sacrifice they made in coming here for a few years to suit our convenience; This provision has- been inserted solely for that purpose- to enable us to give an officer who is a, member of the British Air Force one or two steps up in rank.
– That will be done only in exceptional circumstances ?
– Yes. At the present time Wing-Commander Goble is not a member of our Force. His services have merely been loaned to us. He holds in our Force a higher rank than he held in the British -Force. We are endeavouring to obtain one or two other British officers in the same way. The only way in which we can compensate them for the sacrifice which they are called upon to make is set out in this clause. Under it, I assure Senator Elliott that it is not intended to appoint any officers upon the military side.
– Are there not other officers similarly attached to the Force who will not have passed any examination in regard to their air-craft knowledge?
-Yes. They are in what is called the ‘* Q “ branch. We shall get officers there who have had experience.
– But they will not be required to pass an examination?
– The explanation given by the
Minister is a good one so far as it goes. But recently he made an appointment to our Citizen Forces under a similar section in the Defence Act. It is true that he has cited a number of other sections, upon which I have obtained the opinion of counsel. The only one of those provisions which will hold water is the one which corresponds to this proposal. According to that precedent, the operation of the clause will not necessarily be confined tomembers of the active force in England, so that reserve British officers coming out here may beappointed to a higher rank, thus superseding our own officers. In the case which I have quoted the officeris a captain in the British Reserve, and the Minister relied upon a similar section in our Defence Act to appoint him to a higher rank here.
– There has been no British officer appointed who did not serve in the Australian Imperial Force.
– I move -
That the following proviso be inserted at the end of sub-clause 4: “Provided that such officers shall not be appointed to any rank higher than that for which they have qualified by examination in His Majesty’s Regular Air Force.”
Clause agreed to.
Clause 16 (Conditions of promotion after service abroad).
– Here again there seems to be an intention to discriminate in some way. Under clause 15 all officers, whether they have served in the Australian Imperial Force or not, must pass an examination, therefore the clause cannot refer to such officers, and this clause, like section 21ab which is to be inserted in the Defence Bill, must refer to officers from other Services. It would scorn that special provision is to be made by regulation to promote them without examination. I shall vote against the clause.
– The honorable senator misconceives the intention of the clause. Clause 15 applies to persons who have not seen active service, and requires them to start at the foot of the ladder, but this clause says that those who have been on active service abroad may be appointed or pro moted under such conditions as may be prescribed. Without such a provision, a man who had obtained the rank of a squadron leader in Palestine would have to start all over again.
– Did you not say that all officers of the Australian Imperial Force and of the Air Service had been appointed to equivalent rank in the Australian Military Force?
– They have rank on the military list, but we are not now dealing with that; we are laying down the conditions of promotion in the Air Force, and rank in the military list would not govern such promotion. It is intended that, notwithstanding clause 15,. we may prescribe that an officer who has been on active service and has gained certain rank may be appointed or promoted in the Air Force to equivalent rank. Without this provision such a promotion could not be made.
– Then we may take it that the rights of the Australian Imperial Force flying officers will be preserved, and that persons who come from outside will not be preferred to them.
– That is what is intended. That is governed by the honorable senator’s amendment regarding members of any Expeditionary Force.
– It applies to appointments only. We. are now speaking of appointments and promotions. I think the Minister might give us his assurance that any regulations made under the clause will give preference in promotion similar to that I have moved for in previous cases.
– If the honorable senator has any doubt on the subject, I will give him that assurance.
Clause agreed to.
Every officer shall hold his appointment during the pleasure of the Governor-General, but the commission of an officer shall not be cancelled except for cause and after he has had notice, in manner prescribed, of the cause, and has been given an opportunity of making such statement as he thinks fit regarding the cause.
– I move -
That after the word “ cancelled “ the words “nor shall any officer be superseded” be inserted.
The Minister, I think inadvertently, gave a wrong answer to a question which I put to him to-day, assuming that a rule of the Australian Imperial’ Force regarding promotion from the rank of major to that of lieutenant-colonel applies to promotion to all ranks above that of major. As a matter of fact, it is the only exception to the rule which entitles an officer who is superseded to notification. I propose to again give the Committee an opportunity to realize that supersession means practically the cancelling of a commission, being almost the same in effect. It naturally disheartens an officer, so that the same good work cannot be expected of him afterwards. Officers may often have to be superseded, but they should be told the reason, and thus given a chance to amend, and to please those above them.
– The amendment presupposes that an officer of the Air Force has a right to promotion, but I am not aware of any provision in the Bill, or in the Defence Bill, or in the Army Act, or in the British Act governing the Air Force which gives any officer the right to promotion.
– Surely good service gives that right.
– I do not know any provision or regulation governing military bodies which gives any officer the right to promotion. Certainly such a right has never existed in Australia, nor so far as I can discover in Great Britain. Therefore the amendment introduces an entirely new principle, and I do not think we should hastily give to officers a right which they have not had previously.
– It exists under the regulations.
– The only provision in our Defence legislation, so far as I know, which gives a right in connexion with promotion is one which says that when examinations are held for the purposes of promotion, the man who gets the best results shall, on promotion, be the senior, but that does not give any man the right to promotion.
– Are not the Duntroon boys automatically promoted to be captains after they have served a certain number of years ?
– Yes, after they -have served eight years; but they may be promoted before that.
– Then they have a right to promotion. -
– Yes, and under the regulations the same right exists that I propose to give here.
– I do not like the incorporation of this new principle in the measure in the manner proposed. If we adopt it here, a considerable revision of our defence legislawill be necessary.
– I agree with what has been said by Senator Drake-Brockman. During the war, the principle adopted in both the Royal Air Force and the Australian Flying Corps was promotion, by selection, seniority not being recognised. A man may be a game and efficient flying officer, and yet useless as a squadron commander; but should promotion go by seniority, men might be promoted who might have no qualifications for the positions to which they were appointed. If the amendment were carried, a man could not be superseded until after notice had been given to him of the cause, and he had been given an opportunity to make such statements as he thought fit regarding the cause. The amendment recognises, not merit, but seniority.
.- I strongly dissent from what has been said. The amendment would not in any way curtail the right to promote officers according to merit, but it would give to the officer who was superseded the right to be told exactly what his shortcomings were, or wherein he was deemed deficient. He would then have a chance to appeal should he feel that the statements made about him were not correct. This would not, in any way affect the right to promote according to merit.
– Will not an officer have the right to appeal under the amendment which you made in the Defence Bill?
– He may, but this would define his . rights in a better manner. He would be able to point to a definite wrong, whereas in the other case, he might be side-stepped with the statement, “We have the right by the custom of the Service to select for promotion, and you therefore have no grievance.” No new principle is recognised by the amendment. Senator Drake-Brockman makes pleading his speciality, and on occasions I, myself, employ him in his special professional role of an advocate to.have him represent a client’s case in Court. He has undertaken to advocate the cause of the Minister in this case, and in his zeal for that cause has suppressed the fact that under our own Defence regulations how in existence for years and years no officer in a battalion could be superseded unless he was notified, the idea being that he could state and show cause against it. The only new principle I am advocating is that this should be put in the Act instead of the regulations.
– No, your amendment would go up above the battalion.
– Quite so. I see no reason why it should not.
– I move -
Thatthe words “ manner prescribed, of the cause “ be left out, with a view to insert in lieu thereof the words, “writing of any complaintor charge made and of any action proposed to be taken against him.”
If we pass this amendment, we ourselves prescribe the procedure. I take this wording from the corresponding section of the Defence Act. I am not at all clear why in this case the draftsman has departed from it. I want to bring this clause into exact accord with the corresponding section of the Defence Act.
– I have no objection to the amendment.
Amendment agreed to.
– I move-
That the following words be added to the clause: “Provided that no such notification shall be necessary in the case of an officer absent without leave for a period of three months and upwards.”
It is obvious that in those circumstances the officer cannot be notified. These words will make the clause agree with the corresponding section in the Defence Act.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 18 -
The seniority of officers in their respective ranks shall be as prescribed.
.- Here, again, I propose to restore the exact words of the similar section in the Defence Act. The words “ as prescribed” appear in almost every clause, and I am getting rather tired of legislation by regulation. I move -
That the words “ as prescribed “ be left out.
If that is carried, I shall move to insert other words, which I have circulated.
– I cannot accept this amendment, although in the regulations we propose to issue in the majority of cases the principle laid down by the honorable senator will be followed. There is a difficulty in making it a hard-and-fast section of the Act. It is intended to recognise war service. We may appoint in the first commissioned rank two officers, one of whom may have had active service and the other may not and the one who has not. had active service may happen to be appointed a few days before the other. That would make him senior to the other.
– You could date him back.
– We could, but we prefer to ask Parliament to give us latitude to make regulations, recognising the conditions we have to deal with. At first we shall probably have an adequate staff of officers who have had active service, but as time goes onwe shall have a lessened supply of them, and a greater supply of persons who have not had active service. In the circumstances, fairly flexible regulations will be needed to enable us to give effect to the spirit of the Act, which is’ that active service shall be recognised. I ask Senator Elliott to accept my assurance that the regulations in the main will follow the lines which he has set out in his amendment, but we feel that his proposal is too inelastic. It does not give us as much freedom as we should have if we were free to make regulations to meet the kind of case I have put.
– What I am afraid of is that the Military Board, or whoever controls the appointments, may be led to favour certain people.
– They will favour those who have had active service.
– Once you begin favouring people it is difficult to know where you are going to stop.
SenatorFoster. - If the amendment is carried, will it not knock out the provision you have already had inserted giving preference to the returned soldier where everything else is equal ?
– No, particularly in view of the fact that an officer has no ground now to object if you supersede him. You can appoint a man and promote him next day to captain or any higher rank.
– You propose that if two officers are appointed on the same’ day the one whose name begins with “A” must be promoted before the one whose name begins with “Z.”
– It is not necessary to follow the alphabetical order. All the preference that is given to the returned soldier is that, if two men of equal qualifications apply, one being a returned soldier and the other not, the returned soldier gets the job. It may happen that the Military Board, for various reasons, prefer to make the appointment the other way round, and under the regulations they may have power to do so.
– Will not your amendment force the Board to do it the other way in some cases?
– No. My amendment will be in the precise form that has been used’ in the Defence Act for years, and found to work all right.
– The Defence Force is not a complete analogy, because here we are starting a new Force, the bulk of the members of which will be brought in from outside.
– If the Minister assures me that as soon as the Act gets going he will endeavour to have an amendment introduced to bring it into line with the Defence Act, I shall have no objection.
– You will have the regulations before you.
– I am at least six months behind in looking through the numerous regulations that are sent to me. When the Air Defence Act is in full working order, with every section going overtime producing regulations, I am afraid I shall never catch up.
– All you have to do is to write to the Secretary of the Air Council, asking him to let you know when this regulation is made, and to forward you a copy.
– I thank the Minister for the hint. I ask leave to withdraw the amendment. I see I have no hope of carrying it, as everybody here is asleep.
Amendment, by leave, withdrawn.
Clause agreed to.
Clause 19 (Resignation by officer of his commission).
– There are quite a number of clauses such as this which are in essence the same as similar provisions in the Defence Act or the Defence Bill which we have been considering. This clause is on all fours with a clause in the Defence Bill.
Clause agreed to.
Clause 20 agreed to.
Clause 21 (Half -pay list).
– I understood the Minister to say the other day that officers of the Air Force had to retire at forty years of age, and that when he was asked whether a permanent officer reaching the age of forty would be allowed to transfer to another unit, he said, “ No.”
– There are to be two sections - the flying section and the Q section - and an officer of the flying section reaching the retiring age will have an opportunity of applying to be transferred to the Q section.
Clause agreed to.
Clauses 22 to 25 agreed to.
Cla use 26-
The ages for the compulsory retirement of officers and members of the Air Force shall be as prescribed, but in special cases the GovernorGeneral may extend the prescribed age of retirement for a period not exceeding two years.
Amendment (by Senator Pearce) agreed to -
That the words “ officers and “ be left out.
Clause, as amended, agreed to.
– I had given notice ofmy intention to seek to amend the Bill by the insertion at this stage of a new clause 26a. The Minister for Defence has given an assurance, however, that, in view of the decision of the Senate upon theDefence
Bill in respect to provision for the redress of grievances, similar clauses will, be introduced in this measure-though not necessarily in this part of it - I do not propose to proceed.
Clause 27 (Air Force).
– Since this clause has for its marginal reference the words which comprise the actual title of the Bill, I take it that it may be regarded as the pivot qf the measure. I now propose to raise a matter having to do with the definition clause.
– The honorable senator Will not be in order in discussing anything - outside the scope of the clause, and particularly in referring to the subject-matter of the definition clause, consideration of which has been postponed.
– I submit that, under the head of “Air Force,” I may debate anything having to do with the Bill.
– The honorable senator will not be in order in so doing. The definition clause will come up for consideration al a later stage.
– I assure the honorable senator that the clauses between this and clause 53, which is the actual pivotal clause, are practically all of a machinery character, and have been, copied from the Defence Act.
– In view- of the assurance of the Minister, and perceiving that my opportunity will come when the Committee is discussing clause 53, I shall not pursue my objection at this stage.
Clause agreed to.
Clause 28 agreed to.
Clause 29 -
– In conversation with certain former Air Force officers, who are now engaged in civilian flying, several suggestions were made, which I considered sensible and valuable. Thi3 clause, as the Minister (Senator Pearce) pointed out in his second-reading speech, has to do with the formation of a Citizen Air Force made up particularly of trainees transferred from other technical units. During the second-reading stage I expressed the opinion that much good might be accomplished by the introduction of men who have been trained in piloting aeroplanes under war conditions, and who were now daily engaged in civilian aviation; that is, if they could be brought within the scope of the Air Force scheme, so that their services might be immediately availed of in the event of war. There are numbers of returned officers, experienced air -pilots, who are now engaged in making regular flights, so that they are still closely in touch with active aviation. Will it not be possible to enrol these men in the terms of their own suggestion? They pointed out to me that the great difficulty with a Citizen Air Force composed of trainees entirely would be owing to their lack of actual and continuous training in the air. I was given to understand that even -the most skilful war-time pilots are not likely to be of much immediate’ use unless they have remained in continuous touch with flying. It has been said that some of the accidents which have recently occurred were duc to the fact that the pilots had not maintained their active experience. The majority of former Air- Force pilots now actively engaged in civil flying would be available .and willing to give their services during a continuous period of training, for a month or a little more, during each year.
– I welcome the remarks and suggestions’ of the honorable senator, containing, as they do, the specific assurance of activeflying men that they would be willing to cast their lot with the Citizen Air Force. This clause has been carefully drafted to enable such men to become associated with that branch. They will be looked to to constitute the officers who will, actively assist in training.
– Two young men managing companies made thesesuggestions.
– I am glad to say that the door’ is left open, and such men as the honorable senator mentions have ahearty invitation to come along.
Clause agreed to.
Clause 30 (Power to raise Air Force).
– I would like the Minister for Defence. (Senator Pearce) to give the Committee some information as to what is intended in connexion with the Citizen Air Force. I believe the Minister gave some information concerning the Permanent Air Force during his secondreading speech.
– I gave particulars of the Citizen. Air Force, including the’ number of squadrons, machines, officers, and men.
– Does it mean that this is the Permanent Air Force or is it merely the nucleus of a larger one?
– It is the Force of this year. I gave full particulars in replying to the second-reading debate.
– There is then the opportunity to enlarge the Citizen Air Force when the money is available..
Clause agreed to.
Clause 31 (Existing Air Force to continue).
– This provision is not based on any existing Act. We have raised a Force under the Defence Act, and this will place it on a proper basis by making it subject to this Act. The rights of the men working under the Force controlled by the Defence Act will be preserved.
Clause agreed to.
Clauses 32 and. 33 agreed to.
– I understood from the statement previously made by the Minister for Defence (Senator Pearce) that the age of retirement in the Air Force is 40;. but according to this provision it is to.be 30 years. Does 30 years apply to officers and 40 years to mechanics?
– This does not mean that a man must retire at that age.
– If the principle is the same as obtains in the Navy, every young man enlists for at number of years, but he can go on for a further period. I do not know whether in’ this particular sphere this is good or bad; but I would prefer mechanics and ‘all other members ‘ of the Forces, with the exception of officers, to be allowed to go on to a retiring age, which, in my opinion, might be 50 years.
– It does not mean that they must retire, but it merely gives them the option.
– There is nothing in this clause to provide for them continuing for a further period. .
– The marginal note shows that the provision is based on our Naval Defence Act, in which there is provision which allows men to go on for a further period. It is done by regulation.’
Clause agreed to.
Clauses 35 to 39 agreed to.
In time of war any person who is employed under articles of apprenticeship, may, notwithstanding any provision of or obligation under the articles, enlist in the Air Force, and any person who so enlists shall not bo liable, during the period of his service in the Air Force, and until a reasonable period thereafter, to he claimed for service under the articles. ‘
.- I move—
That after the word “apprentice” the words “ or articles of service “ be inserted.
This is to bring the clause’ into conformity with the amendment made in the Defence Bill.
Amendment agreed to .
Clause, as amended, agreed to.
Clause 41 -
Amendment (by Senator Pearce) agreedto- after”apprenticeship” in line 2, the wordsor articles ofservice “ be inserted.
Clause also consequentially amended.
Amendment . (by Senator Pearce) agreedto-
That after the word “pounds “ the words “or imprisonment for six months or both “ be inserted.
.-I move -
Thatthe following sub-clause be added: - “(3) Whereany person employed under articlesof apprenticeship, or articles of service is required to attend a ship or camp of continuous training under Part XII. of the Defence Act, or isactive servicewith the CitizenForces called outundersection 46of that Act,hisarticlesofaapprenticeshipor articles of service shallbe deemed tobe suspended during the period during which he is attending the ship or camp of continuous training, or is on such activeservice,and, if his master refuses to re-employ him orto allowhim to resume his serviceunder the articlesat the conclusion of the continuous training or active service, the master shall be guiltyof an offence.
Penalty : Fiftypoundsorimprisonment for sixmonths, orboth.”
Thisis a similar provision to the one already insertedby theCommitteein the Defence Bill.
. -This is an amendment which I apposed when it was first submittedby Senator Earle . I think it would be interesting if we had a division on this proposed new sub-clause at this juncture, as the ringing of the bells would wake up some honorable senators who are at present out of the chamber sleeping, and who arenot attending to the business for which they are paid.
Senatorde Largie. - That is unfair; play the game.
– I am referring to those honorable senators who arc out of thechamber, andprobably theringing of the division bells would bring them here.Iam strongly opposed to this amendment, and I donot know why it was proposed.
– It is in the Defence Bill.
– Yes ; and as. I may have sufficient support to have it deleted, I move-
That the amendmentbe amended by leaving out the words” or imprisonment for six months or both”.
– AsIhave alreadysaid that we are living in a civilized age, and such vindictive ‘punishment is unnecessary, I intendto support the amendment. It is quite clear that some unfortunate employer will find himself gaoled under this proposal, for which no adequatereason has yet been advanced.
– I desire to draw attentionto thestate of the Senate. - [Quorum formed.]
.- We must reach finality somewhere. The Committee, by a substantial majority, inserted asimilar provision in the Defence Bill, and in conformity with that decisionI have submitted anamendment to the Air Defence Bill to bringitinto line with the other measure. If we accept Senator Pratten’s amendment itwill be necessary to recommit the DefenceBillfor the purpose of amending it in the same direction.
Amendment of the amendment negatived.
Amendment agreed to.
Clause,asamended, agreed to.
Clause 42 (Disbanding of unit and discharge of airmen).
SenatorDUNCAN (New South Wales) [3.6 a.m.]. - Why is the Governor-General to be given power to disband a whole unit, and what will be the position of the airmen in that unit?
– This provision is copied from the Naval Defence Act. It may be necessary to decrease the number of the Air Forces.
– Is any provision made for paying compensation to men who are discharged after years of training?
– They will on disbandment or retirement draw deferred pay.
.-As the Minister says, theprovision in the Naval Defence Act, of which this clause is a copy, refers to the disbandment of a unit, but I know of no provision in that Act whereby a member of the Forces may be summarily dismissed by the Naval Board without trial. It is a one-sided arrangement that a man who enlists in the Air Force, and serves until he is thirty years of age may be discharged without trial or without any charge being levelled against him.
– An air pilot has to take care of not only his own life, but also that of his mechanic, and possibly that of an observer. It is essential to have the power given in the clause. A man’s discharge might be perfectly justifiable for medical or temperamental reasons. However, this power will only be used in extreme cases.
Clause agreed to.
Clauses 43 and 44 agreed to.
Clause 45 (Command of Force in time of war).
– There are some points of essential difference between the Air Force of Australia and our Military and Naval Forces. It seems to me that under certain conditions the commander of an Air Force retained in Australia for Australian defence may be superseded by some one coming from the Imperial Service, possibly without the same experience or qualifications to deal with the internal defence of the Commonwealth.
– It is quite possible that that may happen, but it can only be done with the consent of the Australian Government for the time being. I am sure Senator Pratten would be the last to say that we should not have the power to place our Air Force under the commander of the British Air Force. Under the exercise of a similar power, we placed our Navy, at the beginning of the recent war, under the orders of the British Admiralty. We must have this power, but it will be used at the discretion of the Government of the day, which is responsible to this Parliament and to the people.
– I am not disagreeing with the latent power given in the clause, but I am opposed to the idea the Minister has just expressed, namely, that the Air Force of Australia should bear to the Air Forces of the Empire the relationship which the Australian Navy bears to the Navy of the Empire. If there is one arm of defence that must be independently built up in connexion with the defence of the Commonwealth, it is our Air Force, and no precedent made by the Military or Naval Forces must necessarily govern it.
-Under certain conditions, and if the necessity arose, would not the honorable senator be agreeable to placing our Air Force under the command of a British. Air Force commander?
– I can scarcely conceive of that being necessary.
– If we send an Army to India or Egypt, accompanied by Air Forces, would it not thenbe necessary?
– I am alluding more particularly to home Air Forces.
– Then there would be no British commander to place them under unless the war was actually upon Australian soil.
– What the Minister has said clears the air to some extent, but the point I shall make a little later is that of all Forces the Air Force should be built up independently.
Clause agreed to.
Clauses 46 to 50 agreed to.
Clause 51 -
Persons who are liable under Part XII. of the Defence Act to be trained in the Citizen Forces, and who are allotted or transferred to the Citizen Air Force, shall be subject to training as prescribed, and shall be subject to this Act and the regulations, and shall, while undergoing training, be deemed to be members of the Citizen Air Force, and while so allotted or transferred, shall be under the orders of the Air Board.
– I should like some explanation with regard to the compulsory air training contemplated under this clause.
– It means that persons who are liable for compulsory training under Part XII. may be allotted to the Air Force, and do their training in that arm of the Service..
– In the air ?
– Possibly; or they may be allotted to the ground organization.
– I take it that this will not apply to Cadets.
– No; it will apply only to the Citizen Forces - the men between the ages of eighteen and twenty-six years.
– This clause, then, will empower the military authorities to compel any young men of Australia between the ages of eighteen and twenty-six years who are required to train under the Defence Act to train for the air, irrespective of their own wishes in the matter?
– The authorities will have that power; but there will be no necessity to exercise it, because there will be more volunteers than will be required. In the same way they have power to compel a man to go down and fire the big guns, which some people say is dangerous work, or may require them to go into the mining service.
– I do not think this clause is quite on all fours with the other provisions of the Defence Act because the authorities will have the power to compel a young man, who may be temperamentally unsuited for that arm of the Service, to train in the air.
– There will be a strict medical examination so that no persons, temperamentally unfit, will be allotted to that branch of the Service.
– I do not agree with the clause, but I think also that the Committee will not agree with me, so with this explanation I shall let it pass.
Clause agreed to.
Clause 52 agreed to.
Clause 53 -
Provided that the regulations shall not increase the fine for any offence so that it exceeds Twenty pounds.
.This clause applies, among other provisions, the Air Force Act to the Air Force in the same way as a similar clause in the Defence Bill applies the Army Act in peace time to the Defence Act. The Committee was against me on that principle in the Defence Bill, and so, in conformity with that decision I have had amendments drafted to this clause providing that the Air Force Act shall not apply to the Air. Force in peace time, though it will apply in war time. If these amendments are agreed to the Air Force will be in exactly the same position, with regard to the Air Force Act, which embodies the Army Act, as the Defence Forces are with regard to the Army Act. I wish to say a few words concerning the principle. First of all the Air Force Act can never apply except in wartime. Therefore it can never apply in Australia in peace. It can only apply when war actually comes here and is being fought on. our soil, because in the late war, although we applied the Army Act to the Australian Imperial Force, our Forces were not brought under it in Australia. The Act did not apply until members of the Australian Imperial Force went outside the three-mile, limit, so it really did not apply in Australia, even in war-time. Nor could the Air Force Act apply in Australia unless there was war on Australian soil. As to the necessity for affirming the principle, the same arguments apply as in relation to the Army Act. Only a just war will gather together allthe resources of the Empire, and then of course we shall hope, for the sake of the Empire, that the Australian Forces will be fighting alongside Forces from all the other Dominions, fighting as a British Force, under similar conditions and regulated by a similar Act. If there is to be fighting on Australian soil, we shall hope for the assistance of the Air Forces from the other Dominions,, as well as the British Air Force, and the same restrictions regarding the application of the Army Act to the Australian Imperial Force in war-time will apply to the Air
Force; that is to say, in so far as the Imperial Air Force Act is inconsistent with this Act or with the Defence Act,, it will not apply. “With this explanation, I trust honorable senators will support the amendments I have indicated. I move -
That after the word “times,” line 1, the words, “while on active service” be inserted.
– This carries us back to the definition clause.
– The clause under discussion is so wide that the honorable senator will be able to enunciate all his opinions on it without any reference to the definition clause, which has been postponed.
– Yes. But this clause refers to the Imperial Air Force Act, which also incorporates the British Army Act. The first intention of the Bill was to apply the Imperial Air Force Act, which, as I have stated, incorporates the British Army Act, in time of peace as well as in time of war, but the Minister has now submitted an amendment which removes the Imperial Air Force Act from the ambit of this Bill in. time of peace. I should like him to go just a little further. I see no reason why our Defence legislation should incorporate legislation of the Imperial Parliament for the Air Forces in the United Kingdom. The air defence of Australia, so far as I can see, has very little relation to Air Force legislation suitable for the United Kingdom. The Mother Countries comprise an area of, say, 125,000 square miles, and so air defence must necessarily be based on strategy relating to a circle with a radius of about 500 miles. I do not believe British air authorities think it necessary to provide aeroplanes with a greater circle of destructiveness than is measured by the distance from London to Berlin, which, I believe, is about 500 miles. To the west there are the illimitable waters of the Atlantic. We also know that the United Kingdom is very densely populated, so a good many regulations would be required in an Imperial Air Force Act. On that account alone they would not be necessary in Australia. In contradistinction “to the position of the United Kingdom, we in the Antipodes are setting out to build up an air defence scheme under conditions that are totally different. This is a continent of magnificent distances, and I, as a layman, assume that any air defence proposal to be effective must aim at meeting the enemy before he reaches our big cities. We also have an area of 3,000,000 square miles, sparsely populated, to cover. Therefore, I do not want to see a wrong start made in connexion with our air defence scheme. The clauses of the Bill that have brought in the Imperial Air Defence Act - I am saying nothing about the Army Act - give me the impression that it is the intention of the military, authorities, who will administer this Act, to, as far as possible, build up an Air Force that will enable them to work in double harness with the British authorities, irrespective of its suitability to the air defence of Australia. I make these observations because I regard this branch of Australia’s defence as being, pro ratâ. to the money that is going to be spent upon it, of more practical importance than the Navy.
– Is there a copy of the Imperial Air Force Act in Australia f
– I have a copy; here.
– To all intents and purposes it is the British Army Act.
-I do not altogether share that view. The British Air Force Act establishes an Air Council, and has provisions relating to the Territorial and Naval Forces, but at this hour of the morning I shall not weary the Committee by going into details in. regard to it. I wish to impress upon the Minister the point that it would be better for us to have nothing to do with the Imperial Air Force Act. I should like to see an untrammelled and unrestricted field for the development of our aerial defence. In that event, the excuse could not be made’ by the responsible authorities that they had to do this, that, or the other thing, because in time of war they would have to” conform to the British Air Force Act. After all that has been said, I do not think any of us will object tq the application of the British Army Act in certain circumstances when we are at war. The Minister’s explanation is satisfactory, so far as it goes. My one fear, however, is that if there is the slightest linking-up of our Air Defence, development with the Imperial Air Force Act, excuses, sooner or later, will be made, if the system does not develop satisfactorily, that this or that has been done because in time of war we have to conform to. the Imperial Act. That would hamstring and leg-rope to some extent the development of our own air defence, which must follow absolutely independent lines, since our geographical and topographical conditions are altogether different from those of the United Kingdom. It would be a mistake if we had anything to do with the air legislation of any other country.
– The honorable senator who has just resumed his seat seems to fear that by applying to our Air Force during a time of war the Imperial Act, we may possibly link up the. limitations that are naturally imposed on an air force in Great Britain - where the conditions are so much more restricted than they are here - with ourown Forces, which we expect to develop and build up under the freer conditions that obtain in Australia. I have no such fear. During peace time the limitations that may exist under the Imperial Act will in no way affect us here in Australia. It is only when a period of warobtains that we shall come under that Act. I am inclined tothink, consequently, that my honorable friend’s fears in this regard are not founded on any fact concerning which we need worry ourselves to any extent. I agree with him that it is necessary that our Air Force should be built up and developed to meet the conditions that exist in Australia, and that it should not be retarded or restricted by an Act that does not have particular regard for those conditions. But since it is necessary in time: of war that our AirForce and those of other parts of the Empire should co-operate for- the purposes of defeating a common enemy, it is advisable that in time ofwar we should work under a common Act so as to have uniformity of effort. -Inasmuch as we shall have this limitation applying only during a period of war, I think the fears which the honorable senator has so lucidly expressed, despite the Hour of the morning, are more or less groundless.
. -The amendments of this clause which the Minister (Senator Pearce) pro poses will, I think,, meet generally the wishes of the Committee, since as a result of them the British Act will not now apply in time of peace. A question on which I should like to have some information is as to whether Australia as a nation within the Empire would have, as constituted at present, any power to declare war on another . nation. “Would it have power to declare war on its own account?.
– I am not a constitutional authority.
– I do not think we have any such power, and that being so, I am in favour of the British Act applying to our Air Force in time of war, since in such circumstances all parts of the Empire will be combined for the purpose of defeating a common enemy.
– The Minister for Defence (Senator Pearce) should feel flattered at the way in which the Committee has received his explanation of the position but, since the matter may be referred to hereafter, there is one point that I particularly desire to stress. There, is a very strong impression that the powers that will administer this measure will administer it along the lines of the Imperial Air Force Act. I am not suggesting that that would be altogether bad, but I do say that unless the extended view of a continent is taken, we shall not have a successful Air Force. We shall not have success if the development of our Air Force is so restricted. There is also abroad a very strong impression that the development of our Air Force will be along those comparatively narrow lines, because of the desire of the military here-
– The military seem to worry the honorable senator a great deal.
– They have worried . me at times; but it is the province of honorable senators to pass legislation, and not to be - bluffed by the military. I repeat that there is an impression that those upon whom the responsibility of building up our Air Force will devolve will follow British lines, irrespective of the requirements of Australia. I hope that the remarks which have been- made in this regard will be noted. I had been promised some very definite information on this point, but, owing to theBill being brought on’ unexpectedly this morning, I am unable to make that information available to the Committee. Should the matter again crop up and the information on which I am now basing my remarks be available, and of such a nature as to be of service’ to the Minister, I shall let him have it.
Amendment agreed to.
Amendment (by Senator Pearce) agreed to -
That sub-clauses 2 and 3 be left out.
Clause, as amended, agreed to.
Clause 54 agreed to.
Clause 55 (Member of Air Force serving on ship of Australian Navy).
– This provision is not covered by any existing Act, and I therefore give an explanation of it. The purpose is to make Air Force personnel embarked on any of His Majesty’s Australian ships subject to” the Australian Naval Defence Act, while they are so embarked. Honorable senators will see the reason for that, because it would never do to have two distinct laws operating on the one ship.
Clause agreed to.
Clauses 56 and 57 agreed to.
Clause 58 -
Except so far as is inconsistent with this Act, the laws and (regulations for the time being in force in relation to the composition procedure (including the reception of evidence) and powers of courts martial in His Majesty’s Regular Air Force, the revision, confirmation, effect and consequences of the findings and sentences of such courts martial, and the mitigation, remission and commutation of the sentences thereby imposed, shall apply to courts martial inthe Air Force and their findings and sentences.
.Honorable senators will notice a reference in this clause to “His Majesty’s Regular Air Force.” It is necessary that those words should stand because the provision is one which will apply in time of war. I move -
That after the words “courts martial” the second time occurring the words “and the powers exercisable in relation to those findings and sentences” , be inserted.
The purpose of the amendment is to bring this clause into conformity with our Defence Act, and the Defence Bill with which we have recently been dealing.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 59 and 60 agreed to.
– I move -
That after the word “law” (line 12) the following words be inserted: - “or he may be delivered for that purpose into the custody of a member of the police force of the Commonwealth or of a State or of a territory who shall receive intohis custody the person so delivered . “
That is the same as the provision in clause 39 of the Defence Bill.
Amendment agreed to.
Amendment (by Senator Pearce) agreed to -
That in sub-clause 3, after the word “Force” (first occurring) the words “on active service” be inserted.
Clause, as amended, agreed to.
Clauses 62 to 65 agreed to.
Clause 66 verbally amended and agreed to.
Clause 67 agreed to.
Clause 68 verbally amended and agreed to.
No member of the Air Force shall be sentenced to death by any court martial except for murder, mutiny, desertion to the enemy, or traitorously delivering up to the enemy any garrison, fortress, post, guard, aircraft material, or ship, vessel, or boat, or traitorous correspondence with the enemy; and no sentence of death passed by any court martial within the limits of the Commonwealth shall be carried into effect until confirmed by the’ Governor-G eneral.
.- I move-
That, the words “within the limits of the Commonwealth “ be left out.
– That would bring the clause into conformity with the Defence Bill.
– No, because ‘ a similar amendment proposed on the Defence Bill was lost. I must again protest against any surrender of our powers of self-government by permitting sentence of death to be carried into effect on any citizen of the Commonwealth until it is confirmed by the Commonwealth Government. I need not repeat the arguments I advanced in “support of a similar amendment moved upon the Defence Bill. I move the amendment on this Bill to direct attention to the matter in another place, where I believe the words “within the limits of the Commonwealth” will be struck out of the similar provision in the Defence Bill, to the fact that this clause also requires attention.
.- With Senator Elliott, I advanced arguments in support of the omission of these words from a similar provision in the Defence Bill, because I did not think it right to give to any outside authority the power to carry into effect the death penalty upon an Australian citizen without reference to the Commonwealth Executive Council. I must again raise my protest against the proposal embodied in this clause. I hope that on this occasion the Committee will agree that it is not right at any time or place that sentence of death should be carried out on an Australian soldier until it has been confirmed by the Executive of the Commonwealth.
.- This point was raised and a vote taken on another Bill; and if we are to have the same arguments and votes over and over again, we shall arrive nowhere.
Clause agreed to.’
Clause 70 agreed to.
Clause 71 -
No proceedings of any court martial constituted or appointed under this Act, shall be set aside or deemed- void for want of form or be removed by certiorari, or otherwise, into any Civil Court.
– I should like the Minister to say exactly what the horrible word “ certiorari “ means.
– The Chairman pronounced the word in a way that showed his familiarity with it.
– So far as the Latin term is construable in its legal sense, I take no responsibility.
-brockman. - It is a writ for removal from one Court to another.
– It does not take . away the right of common law. This clause is taken from the Defence Act.
– I am afraid that the Minister does not know any more about the matter than I do. It seems to me that if this clause is accepted, and some mistake is made in the construction or form of a court martial which might be considered by the High Court to be illegal, it will not be possible to take the case to the High Court on a technicality. .
– It means that the proceedings of a court martial cannot be taken into another Court, but an action may be commenced in another Court.
– I do not know but that we are proposing to do something which will imperil the right of appeal on a writ of certiorari. In the Manual of Military Law. page 123, there is the following: -
Certiorari is a writ issuing (in most cases) out of the High Court of Justice to the Judges or officers of inferior Courts, and commanding them’ to certify and return the record of a matter, e.g., a conviction or order, depending before them, to the end that more sure and speedy justice may be done. If the conviction or order of the inferior Court is found to be bad in law, it will be quashed by the High Court.
In ordinary cases the writ is issued on the application of 0 the person aggrieved almost as a matter of course, unless he has by his conduct precluded himself from taking ‘ an objection (a) In the case of a court martial sentence, the writ will issue only when the rights affected by the judgment of the Court are_ civil rights, and the court is acting with jurisdiction; it will not issue when the rights affected are dependent on military status and military regulations, (b) . .
– It does not affect the civil right, but only the ‘military right.
– Then there is no reason for the- clause, because, under the common law, the writ will hot issue. At this hour of the morning one may be pardoned for being somewhat addled or confused in a matter of this kind ; but clause 71 does appear to me to cut away -a right - that exists under the common law.
– This hasbeen Commonwealth law for over twenty years.
– I am inclined to agree with some of the remarks made by Senator Elliott, but at this hour of the morning I think it would be just as well if we permitted ‘the remainder of the clauses to go without discussion. Fortunately, this Bill will have . to go to another place, and, as sure as the sun is just about to rise, it will come back with a good many amendments. We shall then be able to review the matter, when less fatigued and better able to complete our work of making this Bill a better one. I must say that I think the Minister (Senator Pearce) has been most courteous and gentlemanly through, what must have been a trying time to him.
– After the confessions of addled brains at this early hour I shall try to make the meaning of this clause clear. Assuming that my brains are not also addled, the clause means that a court martial shall not be hampered by undue technicalities. Court martials are so constituted that there shall be as few technicalities as possible about their composition and procedure, and the clause is intended to avoid the introduction of those technicalities and difficulties, which legal gentlemen are only too ready to raise.
Clause agreed to.
All offences (other than indictable offences) which are committed against the Air Force Act by persons who are not on active service, or which are committed against this Act or the Air Force Act, shall be punishable- on summary conviction.
Amendment (by Senator Pearce) agreed to -
That the following words be left out : - “ the Air Force Act by persons who are not on active service or which are committed against”.
Clause, as amended, agreed to.
Clause 73 consequentially amended and agreed to.
Clause 74 (Time for commencing prosecutions before courts martial).
Amendment (by Senator Pearce) proposed -
That the words “ if committed when not on active service” be left out.
– I am not quite clear as to the effect of the clause.
– It refers only to acts committed in time of war.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 75 -
During any term of detention, imprisonment, or penal servitude imposed on a member of the Air Force for an offence against this Act or the Defence Act or the Air Force Act, the member shall, notwithstanding that he is dismissed or discharged from the Air Force or would, but for this section, have ceased to be subject to this Act and the Air Force Act, remain subject to this Act and the Air Force Act.
Amendments (by Senator Pearce) agreed to -
That all the words from and including “ on a member “ be left out, and that the following words be inserted: - “for an offence against this Act or the Air Force Act, on a person who was at the time of the imposition of the sentence, or at the time of the commission of theoffence, a member of the Air Force, the person, notwithstanding that he ceases to be, or has,before the imposition of the sentence, ceased to be, a member of the Air Force, shall be subject to this Act, or to this Act and the Air Force Act, as if he were a member of the Air Force performing Air Service.”
Clause, as amended, agreed to.
Clause 76 -
Any person who is or has been a member of the Air Force may be tried at any time by court martial for the offence of mutiny, desertion, or fraudulent enlistment…..
– I desire to secure the omission of the word “mutiny” from this clause, seeing that it has been omitted from the corresponding section in our Defence Act.
– I am prepared to accept the amendment.
Amendment (by Senator Elliott) agreed to -
That the word “ mutiny “ be left out.
Clause, as amended, agreed to.
Clauses 77 and 78 agreed to.
– There are certain drafting amendments which require to be made here. They are similar to those which have already been inserted in the Defence Bill. I therefore move -
That the words “ reduction in rank or dismissal “ be left out, and that the words “ dismissal, discharge or reduction in rank,” be inserted in lieu thereof.
Amendment agreed to.
Amendment (by Senator Pearce) agreed to -
That after the word “dismissal” the word “discharged” be inserted; that after the words “ Air Force Act “ the words “ committed on active service “’ be inserted, and that at the end of the clause the following words be added: - “ Provided that a commanding officer shall not impose a sentence of imprisonment on any person. “ (4) A person serving under Part XII. of the Defence Act shall not be dismissed, or discharged under any power conferred by this section.”
Clause, as amended, agreed to.
Clauses 80 to 82 agreed to.
Clause 83 verbally amended and agreed to.
Clause84 consequentially amended and agreed to.
Clauses 85 to 87 agreed to.
Clause 88 (Power to construct aerodromes, &c).
– The Minister said the other day that the Government purposed to take power to construct or manufacture air draft material, and so on. This clause authorizes the employment of persons in a civil capacity in connexion withany service or auxiliary to defence. I wish to know whether, under the clause, anything can be done to assist those connected with civil aviation who have recently approached him for grants in aid of . their enterprise, or whether they must wait until he carries out his intention of making use of them bydirect enrolment in the Citizen Farces.
– Persons who enrolled in the CitizenForces would be paid not under this, clause, but under the provision that I read to the honorable senator. This clause deals with persons employed by the Air Department in any auxiliary service, or in works or establishments, such, as men engaged in clearing landingplaces, erecting marks, and doing work, of that kind.
Clause agreed to.
Clauses 89 and 90 agreed to.
Amendment (by Senator Pearce) agreed to-
That the following new clause be inserted: - “ 90a. ( 1) If an officer of the Air Forcethinks that he has been wronged and, on due application, does not receive the redress to which he considers he is entitled,, he may complain through the proper channel to the Air Board, or, if the Air Board is not at the time constituted, to the AirOfficer commanding the Australian Air Force in which he is serving.
The Air Board or the Air Officer, as the case may be, shall, without delay, investigate the complaint.
If the officer complaining so requires, the Air Board or Air Officer,as the case may bo, shall forward the complaint to the Minister for submission to the Governor-General, together with a report on the subject-matter of the complaint.
Any directions given by the GovernorGeneral in relation to the complaint shall be carried into effect without delay.
(a) If an airman thinks that, he has been wronged in any matter by any officer other than his Flight Lieutenant, or by any airman, he may complain to his Flight Lieutenant; and
if he thinks that he, has been wronged by his Flight Lieutenant, eitherin respect of his complaint not being redressed or in respect of any other matter, he may complain to his CommandingOfficer; and
if he thinks that he has been wronged by his Commanding Officer, either in respect of his complaint not being redressed or in respect of any other matter, he may complain to the Air or other superior officer commanding the command or station where for the time being theairman is serving; and
if he thinks that he has been wronged by the Air or other superior-, officer specified in the last preceding paragraph, either in respect of his complaint not being redressed or in respect of any oilier matter, he may, except in time of war, complain to the Air Board.
Any complaint made in pursuance of the last preceding sub-section shall be made through the proper channel.
Where, in pursuance of sub-section (5) of this section, a complaint is. made to the Air Board or to and officer, . the Air Board or the officer, as the case may be, shall -cause the complaint to be investigated, and, if satisfied with the justice of the complaint, shall take such steps as arc necessary for giving, to the airman complaining, fall redress in respect of the subject-matter of the complaint.
In this section ‘ Flight Lieutenant ‘ means an officer of whatever rank . commanding a Flight or equivalent command.”
Clauses 91 and 92. . agreed to. .
Amendment (by Senator Pearce) proposed -
That the following new clause be inserted: - “ 92a. Any person who -
wilfully or . by wilful neglect or negligently damages, destroys, or loses any aircraft or aircraft material belonging to, or used in connexion with, the Air Force,, or
is guilty of any neglect likely to cause any such damage, destruction . or loss; or
by neglect (whether wilful orotherwise) . causes any property belonging to or used in connexion with the Air Force to be damaged or destroyed by fire ; or
without lawful authority, disposes of. any aircraft or aircraft material belonging to or used in connexion with the Air Force; or
wilfully or by wilful neglect or negli gently causes any danger in flying to the life of any officer or airman ; or
in time of warwilfully and without proper occasion, or negligently, causes the sequestration by or under the authority of a neutral state, or the destruction in ‘a neutral state, of any aircraft belonging to or used in connexion with the Air Force, shall be guilty of an offence.
Penalty . Five hundred pounds or imprisonment for three years.”
-Why is reference to a neutral State made in the clause if this provision is to have application in peace time? There can bo a neutral State only when we are at war.
– There is sometimes an interregnum between peace and war, such as we have now. We are technically at war, but we would not apply the Air Force Act to our Air Force now. There is such a thing to-day as a neutral state.
– With whom are we technically at war?
– With Hungary.
Proposed new clause agreed to.
Clause, 93 agreed to.
Postponed; clause 4 (Definitions).
– This clause was postponed because at that time we had not discussed the question of the application of the Air Force Act. I have had the clause analyzed by the Law authorities who assure me that no alteration is. necessary to make it accord with the- decision of the Committee not to apply the Air Force Act in time, of peace-
.. - I move -
That the following definition be inserted : - “‘Air Board’ means the Board of administration for the Air Force to be constituted under this Act.”
That definition is required.
– “ Air Board.” is defined’ in clause 9.
-In going through the Bill we find references to the Air Board, and no definition of it appears in the definition clause. The same applies to the Military Board. Thatis confusing.
– And the Naval Board should be defined.
– Those Boards are defined in the Acts dealing with them..
– I do not think the Military Board is defined in the Defence Act.
– It is defined in the regulations.
– It is advisable, for the benefit of practitioners and others, to define those bodies in the interpretation clause. I would put in the definition of Military Board after the definition of “Airman,” or perhaps after the definition of . “ the Defence Act.” There should also be adefinition of “ Commanding officer.” Various powers are given to the commanding officer, but there is no definition. We could put in after, the definition of- “ Airman “ the words “ Commanding officer, means the commanding officerof any unit.” . I have circulated amendments to define “ Member “ and “ Minister,” but it may not be necessary to press them.
. - This is entirely a question of draftsmanship. Is the Committee to be guided by Senator Elliott, who apparently thought out several of his suggestions while he was on his feet, or by the Crown Lav? authorities? The Bill has been carefully drafted by the Commonwealth draftsman and submitted to the Crown Solicitor. It is a complete whole. I could understand members not agreeing . with some of the principles of the Bill, but in the matter of draftsmanship we must give the benefit of the doubt to those who have had the preparation of the Bill as a whole, and have had before them the Acts Interpretation Act and other measures. Some of the amendments Senator Elliott has circulated show that he has not read the Acts Interpretation Act.
– Does it define the Air Board?
– No ; but we shall make a hash of the Bill if we start putting on patches here and there, and try to think out alterations while standing on our feet.
– My amendments have been before the Minister for weeks.
– The draftsmen assure me that they are not required. I can see no virtue in repeating, in the definition clause, the same words as appear in clause 9, after merely turning them round. Some of Senator Elliott’s proposals seem to be put forward for the mere purpose of making alterations.
– What about the Military Board?
– The Crown Law people think a definition is unnecessary. The only definition suggested by the honorable senator to which they see no objection is that of “ Member,” and this I am prepared to accept. I do not want to make a botch of the Bill by accepting amendments which have not been looked at in connexion with the whole scheme of the Bill. Senator Elliott has not had the time that the draftsman has had to look at the Bill in relation to all other Commonwealth legislation affected by it.
– I did. not frame or move these definitions for amusement. I thought I was assisting the Minister. Clause 7 speaks of the
Air Board, but it is not defined until clause 9 is reached. Legal difficulties may occur from that fact. If clause 9 preceded clause 7, there would be no difficulty.
– The Bill is. read as a whole.’
– But the interpretation clause should be complete, particularly when a new organization is being created. I have not been able to find a definition of “ Military Board “ anywhere ; nor do I think “ Commanding officer” has been defined in any Act, although some cumbrous definitions are given in some of the regulations.
– The draftsman tells me that if we accept your definition of “ Commanding officer,” we may get into trouble, as there will bedifficulties in connexion with the powers of detached officers.
– I , am not wedded to the wording I have circulated ; but the draftsman should have been able to define “ Commanding officer “ in terms that would not lead to confusion.
– The definitions of “ Minister,” and “ Prescribed” “ are already covered by the Acts Interpretation Act.
– I copied my amendment from the Defence Act; but if it is included in the Acts Interpretation Act, that will be the end of the matter.
– It was in the Defence Act before the Acts Interpretation Act was amended.
– That being so, I will not press my amendment.
Amendment (by Senator Elliott) agreed to -
That the following words be added after the definition of “ Airman “ : - “ Member “ includes any air officer and airman.
Clause, as amended, agreed to.
First schedule agreed to.
Second schedule -
I swear that I will well and trulyserve Our Sovereign Lord the King as a member of the Air Force Reserve of the Commonwealth of Australia, and thatI will resist His Majesty’s enemies and cause His Majesty’s peace to be kept and maintained and that I will in all matters appertaining to my service faithfully discharge my duty according to law. So help me God.
Amendment (by Senator Pearce) agreed to -
That after the word “Australia” the following words be added: - “For the term of years, or until sooner lawfully discharged, dismissed, or removed.”
Schedule, as amended, agreed to.
Title agreed to.
Bill reported with amendments.
Sessional and Standing Orders’ suspended.
Motion (by Senator E. P. Millen) agreed to-
That the Bill be recommitted, for the purpose of further considering clause 78.
In Committee (Recommittal).
Clause 79 (Certain officers may. punish,) .
– It is not often that mistakes occur in the printing of a Bill. On this occasion, however, a rathercurious error has crept in. In the schedule of amendments which I circulated among honorable senators,’ there was one embracing a proviso to this clause, as follows : -
Provided that a commanding officer shall not pass a sentence of imprisonment on any person.
That proviso was adopted; hut there should have been additional words included. I move, therefore -
That the following words be added at the end of the proviso: - “ and shall not award detention to a member of the Citizen Air Force for an offence committed when not on active service, and that when sot on active service a member of the Citizen Air Force shall. not be required to undergo confinement to barracks, except when attending continuous training.”
Amendment Agreed to.
Clause, as further amended, agreed to.
Bill reported with further amendments; reports adopted.
Bill read a third time.
Bill read a third time.
Motion . (by Senator E. D. Millen) agreed to -
That the Senate, at its rising, adjourn until 2.30 p.m.
Senate adjourned at5.13 a.m. (Friday).
Cite as: Australia, Senate, Debates, 12 May 1921, viewed 22 October 2017, <http://historichansard.net/senate/1921/19210512_senate_8_95/>.