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STANDING COMMITTEE ON PETITIONS - 15/03/2010 - Petition regarding the convictions of Morant, Handcock and Witton

CHAIR —We welcome Mr Unkles, who is the principal petitioner. Although the committee does not require you to give evidence under oath, I should advise you that the hearing today is a formal proceeding of the parliament. I remind you, as I remind all witnesses, that the giving of false or misleading evidence is a serious matter and may be regarded as a contempt of the parliament. We invite you to make a brief opening statement before we go to questions.

Mr Unkles —Thank you. Madam Chair and members of the petitions committee, on behalf of myself and Nick Bleszynski, author and historian, who is also here today, I wish to thank you for the opportunity of appearing before the committee on a matter of significant importance to all Australians. I commend the committee for its recognition of the petition that I submitted in October of last year. Before proceeding further, I would like to commend the work of Dr Brian Lloyd, the secretary of the committee. Dr Lloyd has been most professional in providing assistance to me. I also wish to state at the outset that the views expressed by me, both written and verbal, are entirely my own and do not necessarily represent those of the Royal Australian Navy, the Royal Australian Naval Reserve, the Department of Defence or indeed the Australian government.

On this ides of March, let me say that what happened to Morant and Handcock was a good deal rougher, in terms of the lack of justice, than what happened to Julius Caesar on the floor of the Senate. Over 108 years, this case has apparently been the property of organisations like the War Memorial and individual historians, who have determined whether these men were lawfully convicted and sentenced, and who may or may not enter the arena of debate. Thankfully, this conservative and blinkered approach has come to an end with today’s proceedings.

The high-handed approach is best illustrated by Peter Stanley in an article he had published in the Canberra Times on 8 March in which he asks:

Are Unkles and Bleszynski pursuing them in the interests of “justice”? No.

The imputation is that both I and Nick Bleszynski have had an ulterior motive. For the record, I responded in an article printed in the newspaper on Friday, 12 March:

Stanley’s imputation that this case was not pursued in the interests of justice is insulting and is refuted.

To dispel any conspiracy theory, the pursuit of this matter commenced years ago when Mr Bleszynski, who researched the circumstances behind the Morant matter, wrote the book Shoot Straight, You Bastards! in 2002. As for me, I began researching the history of Morant’s lawyer, Major JF Thomas, a country solicitor from Tenterfield who went to the Boer War as an infantry officer. My research was prompted by discussions also with Captain Tim Beale, an Army Reserve legal officer.

My research soon grew into studying the circumstances of the arrest and trial of Morant, Handcock and Witton. Aside from my interest in history, my research into the law that governed the trials in 1902 was motivated by nothing other than my concerns about justice and the lack of credible and legal due process in 1902. My aim is to focus on accountability, to get the convictions quashed and the sentences pardoned. Mr Stanley’s statements that:

Unkles is arguing that Morant and Handcock received rough justice because the court-martial proceedings were flawed—if they are compared to modern practice.

and that:

Their case lacks common decency: this sort of amorality is why lawyers have such a poor reputation.

demonstrate, in my view, his complete lack of understanding of what the petitions and the supporting legal arguments are about, and his bias against the rule of law and due process of 1902. For his benefit, and for the public record, for the committee, I again state: this case is about an unsafe trial, according to the legal standards of proof and procedure, in accordance with the law of 1902. Stanley’s comments about legal technicalities and lawyers are unfair and insulting, and again demonstrate his lack of understanding. If ‘common decency’ means standing up for fairness and due process, then I make no apologies.

Taking Stanley’s arguments to their logical conclusion, what he is saying is that, in a democracy, standards of jurisprudence are defined without adherence to legislative standards and common law. The laws that governed the trials of these officers were defined by the British Army Act 1879, the Manual of Military Law 1898 and the courts martial rules of procedure 1899. No amount of criticism from anyone, including Mr Stanley, will change that. What this case is about is holding the military authorities of 1902 to account against the legal standards of that time.

I understand that the committee’s role is to inquire into and report to the House on this petition. The committee’s role is significant as it provides Australians like me with an opportunity to raise a matter of public importance through a process that is immediate, devoid of unnecessary protocol and burdensome red tape, and that attracts the attention of our elected representatives. Importantly, it ensures the attention of relevant ministers and MPs in Australia and in Britain. This particular petition to the House has also been complemented by the petition that I have forwarded to Her Majesty Queen Elizabeth. I am pleased to say that this petition is now being considered by the British government, and I have a copy of that for the committee if you wish to have a look at it.

We are witnessing important legal history today. For the first time since Morant, Handcock and Witton were tried and sentenced in February 1902, their convictions and sentences are being reviewed by an Australian institution—the parliament. I am pleased to say that—unlike the proceedings in the cases of Morant, Handcock and Witton, who were tried and sentenced in secrecy, without the knowledge of the Australian government and their relatives—these proceedings are being conducted in an open and transparent manner. The arrest and trial of these men—volunteers, not professional, permanent soldiers—who served the British in their war against the Boers, were kept a secret from the Australian government and, more importantly, their relatives.

As I have detailed in legal submissions before the committee, perhaps the most aggravating aspect of their sordid trial was the manner in which the men were denied the basic rights of a civilised nation—that is, England—of contacting their relatives and seeking support of their government. Tragically, this secrecy also precluded their defence counsel, Major Thomas, and his clients from seeking clemency from the King to whom they had pledged their military service. Morant and Handcock went to their deaths knowing that their appeal rights of 1902 were denied—a cruel and calculated conspiracy of the British military command. As to George Witton, his sentence of life imprisonment came to an end on 11 August 1904 when he was released after an extraordinary display of nationalistic fervour by over 80,000 Australians who petitioned King Edward VII, the Australian government led by Prime Minister Barton, representatives of the South African government, and even former Boer commanders and British MPs including Winston Churchill. There was also a persuasive petition presented by Isaac Isaacs KC, MP.

Of great legal significance was the British government’s recognition of the injustice of Witton’s trial and the sentence. The House of Commons, interestingly, voted on 11 August 1905 to overturn Witton’s sentence. This is a precedent for what is being sought now. I am pleased to welcome the descendants of the men here today and share their hope that the dedicated and professional legal work done by their lawyer, Major Thomas, and Witton’s lawyer, Isaac Isaacs, will now continue so this matter can finally be resolved.

On behalf of the nation, this case is an unjust stain on Australia’s identity and military history. For the descendants, this matter has been a source of intense grief and personal interest. Their letters to the government and the Queen will be presented to the committee and they wish me to express their thanks to you and the parliament for the interest shown in this matter. They wish a fair and transparent process of review by the British government and hope that the British authorities will finally recognise the injustice that occurred and will continue the remedy that was partly shown to George Witton—namely, his release from prison and the overturning of his sentence.

What is expected now is the final step—a quashing of the convictions and the granting of pardons for Morant, Handcock and Witton. The Attorney-General has responded for the committee and the petition has been referred to the British Crown. The remaining question for the committee to consider, in my view, is: what should be done? The detractors have focused solely on history and argued the status quo—namely, do nothing. I say that this is not a case of arguments over history. It is far more important than that. It is about due process that was supposed to have been followed in accordance with the British military law of 1902. It is a furphy for people like Peter Stanley, Craig Wilcox and others to suggest that we are trying to apply the laws of 2010. This is simply not the case. Nor is it a case of arguing legal technicalities. This argument is absurd and does not represent any of the research contained in the materials that I wish to put before you. One of my primary sources used in the research is this Manual of Military Law 1899.

What this committee can do is make findings and recommendations to the British government through our parliament. Your deliberations will have a significant effect on the final outcome. I am happy to answer any questions you may have, and wish to provide you with copies of legal submissions, a covering executive summary and conclusions, and letters from some of the descendants. I also have copies of the two letters that appeared in the Canberra Times in the last week or so, and a short summary and an outline for the committee.

CHAIR —Given that this is a roundtable discussion rather than an inquiry, I would ask you to give the letters and documents to our secretariat staff at the conclusion of today’s roundtable. The committee will consider them in private at a later date and the secretariat will then inform you of the committee’s decision.

Mr Unkles —Thank you.

CHAIR —I have just a couple of questions before we move to the Attorney-General’s Department. The petition appears to suggest that a pardon for the men named in it would be a significant development. What do you say to arguments that the exercise is a pointless one? Secondly, can you tell the committee what the significance of a pardon, or pardons, would be if granted?

Mr Unkles —In some of the documents that I will leave with the committee today I say this as to one of your points: the passing of time and the fact that Morant, Handcock and Witton are deceased does not diminish the errors in the administration of justice. Injustices in time of war are inexcusable and it takes vigilance to right wrongs and address injustices. I say that the passing of time is irrelevant. There is an argument that says that time is of significance or the fact of whether someone is alive or dead makes a difference. I say that there is no difference. If on the face of it and proven they were treated unfairly and not in accordance with the law, the fact that they are dead means that they should be recognised and pardons should follow. A similar process was followed by the New Zealand government with New Zealand soldiers executed during World War I by the British—and Canadian, British soldiers and Irish soldiers. So I say that the passing of time, if anything, means that this case is very significant. It is very important that the wrongs be corrected.

What difference will it make? There are a lot of relatives here today and it makes a lot of difference to them personally. As you will see from the letters I will file today, they have carried this burden throughout their family histories for many decades. It has been handed from one generation to the next. So for them personally it will make a difference. What is it to the nation? Leaving the movie aside, I think it will make an enormous difference. This case has got nothing to do with the movie; it has everything to do with demonstrating to the public that due process and fairness are hallmarks of our democratic system—a democratic system that I acknowledge we inherited from the British. I want to celebrate that by bringing this case to the committee’s attention and to the attention of the British government. I believe that on the merits of the legal arguments there is a strong case for pardons. Those posthumous pardons would enable these men to claim their rightful place in the archives of Australia’s military history.

CHAIR —Are you happy with the response to date from the Attorney-General that he has referred your petition to the British Secretary of State for Defence? You have stated you have also written to Her Majesty the Queen. Is that correct?

Mr Unkles —That is right.

CHAIR —Have you received a response from Her Majesty the Queen regarding your letter or the copy of your petition?

Mr Unkles —Yes, I have got a response. That petition, which is considerably longer than 250 words, was sent to the Governor-General and the Governor-General of Australia sought advice from the Attorney-General on the contents of that petition. I understand, without having access to correspondence within the department, that that petition has now gone back to the UK. I have a copy of that petition with me and I am happy to provide a copy.

CHAIR —We are out of time. I know you will be coming back to the roundtable once we have heard other people who are coming before us today.

Mr Unkles —Thank you.

[9.49 am]