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Wednesday, 3 May 1939


Mr STREET (Corangamite) (Minister for Defence) . - The honorable and learned gentleman (Mr. Brennan) who has just resumed his seat cast about in his mind to find some reason for the Government proceeding with this bill at this particular juncture. Perhaps, in view of the somewhat flattering remarks which the honorable gentleman has addressed to myself, I might reciprocate by saying that it was brought on at this particular juncture purely for the pleasure of hearing him speak upon it, the Government well realizing that he had secured the adjournment of the debate on the motion for its second reading.

As the former Minister for Defence (Mr. Thorby) said, when introducing the bill, its object is simply to apply to visiting forces from the United Kingdom and the dominions their local disciplinary codes while they are in Australian territory. So far the United Kingdom, Canada and South Africa have passed legislation relating to visiting forces, and it remains for the 'Commonwealth of Australia to do likewise in order to come into line with them. Whilst such legislation is not in force in this country, although Australian forces visiting the United Kingdom, Canada and South Africa will continue to be governed by the law of the Commonwealth in relation to their discipline and internal administration, visiting forces from the United Kingdom, Canada and South Africa to Australia would not be able to apply their own law or to use the Commonwealth's machinery in respect of their relations with the civil power and with civilians. Surely that is not a position which this House would like to arise ! Surely it is an obligation upon the Commonwealth to pass this complementary legislation so as to be able to conform to the action taken by those other dominions! That is all that this bill sets out to do.

The honorable gentleman asked whether I really think it proper that this bill, being dependent upon the Statute of Westminster, should be introduced prior to the adoption by the Commonwealth of the relevant sections of that statute. With all due deference to the legal knowledge of the honorable gentleman, I submit that this bill is not dependent upon the adoption of the relevant sections of the Statute of Westminster, but that thenecessity for it arises as the result of the enactment of that statute by the Government of the United Kingdom in December, 1931, and its subsequent adoption by Canada, South Africa and Eire. Consequently the British Army Act, which formerly provided for the discipline, the internal administration, and allied matters affecting visiting forces, is no longer law in any dominion which has adopted the statute, and therefore it is necessary for the dominions to make provision under their own laws for these purposes. This is merely complementary legislation by the Commonwealth of Australia 'to bring it into line with legislation passed by other dominions. Beyond anything else, it is a reciprocal measure. The Imperial Visiting Forces Act has already granted to Australian forces in the United Kingdom, certain immunities which are no doubt expected to be extended to the forces of the United Kingdom when they should visit this country. Similar considerations, of course, apply to the other dominions. As I said by interjection - and the honorable gentleman agreed with me - the application of the Habeas Corpus Act has no effect insofar as it relates to Australian soldiers in Australia or to English soldiers in England. But it is perfectly true that the Imperial Visiting Forces Act will deprive a member of a visiting force from Australia of the right of habeas corpus proceedings whilst he is present in Great Britain. That is not denied. Similarly, this enactment will deprive a member of a British force visiting this country of a similar right whilst he is in Australia. That condition applies also in respect of the other dominions. Canada has, I understand, made provision for its own forces while they are out of Canada. But, so far as I have been able to ascertain, there is no provision in the Canadian act which extends the habeas corpus provisions to visiting forces whilst they are in Canada. The whole point of that particular provision is that the bill is entirely reciprocal in its nature, and that it brings Australia into line with legislation which has been passed by the United Kingdom.

The honorable gentleman foreshadowed a certain amendment that he proposes to move in committee, and also expressed repugnance to the idea of the death penalty, perhaps, being carried out in this country. The honorable gentleman will know better than I do what offences under the British Army Act permit of such a penalty being enforced. I imagine there are few offences; for example, desertion for a specified period, or cowardice. That is a matter of the application of the British Army Act to British forces should a situation requiring its application ever arise in this country. It is not for this Government, I consider, to interfere with the laws of Great Britain. "We have our own laws, which would operate in respect of our forces whilst, they were in Great Britain if we had accorded to us the privileges conferred by the Imperial Visiting Forces Act. As this is to be a reciprocal 'act, we must expect to receive under British law, the same privileges or immunities as we would give under Australian law in this country.


Mr A Green - "Would an English soldier be executed for desertion in this country?


Mr STREET - It would be legally possible, if the honorable gentleman can conceive of such a situation arising. I am sure that neither he nor I can do so; nor would we desire it. I cannot say offhand what are the offences under the British Army Act for which such a penalty is prescribed.

I understand that the honorable member for Batman does not wish to divide the House on this measure. It is, perhaps, somewhat complicated from the legal point of view, but does not, I think, basically contain anything that is controversial. I do not believe that its passage should follow the adoption of the relevant sections of the Statute of "Westminster, but it is, I think, necessary because of the enactment of that Statute by the British Government eight years ago.

Question resolved in the affirmative.

Bill read a second time.

In committee:(Quorum formed.)

Clause 1 agreed to.

Clause 2-

This act shall commence on a date to be fixed by proclamation.







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