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Wednesday, 28 October 1914


Senator PEARCE (Western Australia) (Minister of Defence) . - In moving

That this Bill be now read a second time,

I have to thank the Senate for suspending the Standing Orders to enable me to do so. This is a very important and urgent measure, and the Government would not have taken this action if there were no immediate necessity for it. The Bill will remain in operation during the continuance of the present state of war, and no longer. It is designed entirely to meet conditions inseparable from the war, to provide for effective measures being adopted for the safety of Australia, and for taking due steps to see that no assistance of any kind can be rendered to the enemies of the Empire. When the late Government were raced with the war, they had to do many things for which they had no statutory authority. Many executive orders and minutes had to be made, and decisions come to, and they or their successors had to look to Parliament for statutory authority for what had been done. In clause 3, we ask Parliament to give retrospective power for the essentially necessary regulations and proclamations issued, and to give legal authority for the acts done. Perhaps one of the most debatable clauses, although, in fact, one of the least important, is clause 4. I am not inviting the Senate to engage in a long debate on it, because it is desirable that this Bill, and another, should go through to-night, but I draw attention to it so that honorable senators may see what they are passing. It provides -

(1)   The Governor-General may make regulations for securing the public safety and the defence of the Commonwealth, and for conferring such powers and imposing such duties as he thinks fit, with reference thereto, upon the Naval Board and the Military Board, and the members of the Naval and Military Forces of the Commonwealth.

(2)   The regulations may authorize the trial by courts martial and punishment of persons contravening any of the provisions of such regulations designed -

(a)   to prevent persons communicating with the enemy, or obtaining information for that purpose, or for any purpose calculated to jeopardize the success of the operations of any of His Majesty's forces in Australia or elsewhere, or to assist the enemy; or

(6)   to secure the safety of any means of communication, or of any railways, clocks, harbors, or public works; or

(c)   to prevent the spread of reports likely to cause disaffection or alarm, in like manner as if such persons were members of the Military Forces of the Commonwealth, and had on active service committed an offence under section 5 of the Army Act.

Section 5 of the Army Act reads; -

Every person, subject to military law, who, on active service, commits any of the following offences, that is to say : -

(1)   Without orders from his superior officer, leaves the ranks in order to secure prisoners or horses, or on pretence of taking wounded men to the rear : or

(2)   Without orders from his superior offi cer, wilfully destroys or damages any property : or

(3)   Is taken prisoner by want of due precaution, or through disobedience of orders, or wilful neglect of duty, or having been taken prisoner fails to re-join His Majesty's Service when able to re-join the same : or

(4)   Without due authority, either holds correspondence with," or gives intelligence to, or sends a flag of truce to the enemy : or

(5)   By word of mouth, or in writing, or by signals or otherwise, spreads reports calculated ' to create unnecessary alarm or despondency : or

(6)   In action, or previously to going into action, uses words calculated to create alarm or despondency, shall, on conviction by court martial, be liable to suffer penal servitude, or such less punishment as is in this Act mentioned.

There are several sub-sections there which it is not necessary to bring under this Bill. In so far as they are covered by the Defence Act - and many of them are - they will be dealt with in that way, but there are several other sub-sections which can easily be contravened by persons who are civilians and not soldiers, such as communicating with the enemy, making signals,' or giving information that will be of service to the enemy. Such actions might render very valuable assistance to the enemy, and do considerable damage to ourselves, and for the purposes of this clause they are read as if they were offences against section 5 of the Army Act. As regards the court martial powers of the Commonwealth, the Bill is to be read as part of the Defence Act, section 99 of which sets out the powers of court martial as follows! -

(1)   The proceedings of a court martial, other than a regimental court martial, shall, after promulgation, be forwarded to the Minister for transmission to the Attorney-General for record.

(2)   The proceedings of a regimental court martial, after promulgation, shall be preserved for not less than three years in the office of the District Commandant of the military district in which the corps of the accused was stationed.

(3)   Any person who has been tried by a court martial shall be entitled, within six months from the date of the final decision, to a copy of the proceedings on payment of the prescribed fee.

I want to make a statement on behalf of the Government which has already been made by the Attorney-General in another place. In issuing a proclamation or any draft regulations under the general power given to Us in this clause, it is intended to fully set out that the Attorney-General shall have the right, not only to have these sentences for the purposes of record, but to review any sentence given under a court martial. The Government do not intend, under the clause, to give to the courts martial general powers, but in every case where they are given powers, limited as they are by the three sub-sections, we shall limit them in the regulations to specific actions, and will not grant a general power.


Senator Bakhap - Specific penalties?


Senator PEARCE - I would not go so far as to say that.


Senator Bakhap - Will the courts martial have power to inflict capital punishment?


Senator PEARCE - The courts martial which are referred to in section 69 are courts martial under the Defence Act.


Senator Bakhap - Only penal servitude.


Senator PEARCE - Under our law no court martial has power to award death. It will be seen that, while we ask for power to be given to courts martial, it is in a very limited class of cases, and the sentence is always to be subject to review by the Attorney-General, and that the power to be conferred on these courts martial will be given by regulations which will be made by the Government and subject to review, alteration, or revocation by them at any time.


Senator Lt Colonel Sir Albert Gould - Are these regulations to be laid on the table of either House ?


Senator PEARCE - The regulations, of course, will have to be presented to each House. I want to stress this point: that with the exception of clause 4 all other offences committed under the measure will be tried as offences against the Defence Act, and, therefore, will come before the ordinary Courts of the Commonwealth. That, I think, will make it perfectly clear to the Senate what is proposed. In clauses 6 and 7 are set out the penalties for offences against the Act. It will be seen that the penalties for some classes of cases would not be sufficiently heavy, but I would remind the Senate that it is now engaged in considering the Crimes Bill, and that the Trading with the Enemy Bill is now law. The Attorney-General will have a choice as to which of the Acts he will proceed under, and, of course, he would take into account the enormity of the offence committed in deciding under which Act he would proceed, provided that it contained sections which fitted the offence. With this explanation, I can assure honorable senators that after consultation with the Attorney-General I have drawn their attention to all the salient points of the Bill. I ask honorable senators to give a speedy passage to the Bill, because I can say, on behalf of the Government, that it is required now. Action of an important character has had to be taken practically in advance of statutory authority. We are sufficiently seized of the fact that the time has arrived when we should have the drastic powers that are conferred upon us by this Bill. I ask honorable senators to remember that we shall be sending from the Commonwealth troops in transports, and that they are the easiest possible subject of attack. No matter how strong the convoy may be, the troops are subject to attack, and really the only safety we can guarantee for them is absolute secrecy as regards their movements. Unfortunately, I have to say that there is a curiosity on the part of the public; perhaps a very natural one - an anxiety on the part of friends; quite a natural one - and a desire on the part of a section of the public for business purposes, to use the commercial means of exploiting their anxiety and their curiosity, so that we need to possess very drastic powers. We should have to use these powers in a very drastic way in order to absolutely secure the safety of those citizens of Australia who are going across the seas to fight for the country. We want them, if they have to lay down their lives, to do so on the battle-field, and not to be swept out of existence on the ocean without the chance of firing a shot in return. The powers we seek in this measure, drastic as they are, are absolutely needed at the present time, and, therefore, I trust that the Bill will have a speedy passage.

Senator Lt.-Colonel Sir ALBERTGOULD (New South Wales) [8.15].- In dealing with a measure of this kind, we all belong to one party. Whatever proposal may be brought forward by the Government, if it is commended to us as being necessary in the interests of the Commonwealth and for the safeguarding of the Empire, it will receive fair and just treatment at the hands of every individual senator. This Bill, I recognise, contains very many drastic provisions, but after the explanation given by the Minister of Defence I feel that there can be no difficulty in acceding to his request to give it a speedy passage. It is recognised generally that the war in which our nation is engaged is the greatest war, not. of the century, but, I suppose, of the world's history, and that upon the result of the war will depend the prosperity of the contending nations. Nothing more deplorable could be imagined than that there should be reverses which would interfere with the future of the British Empire. I welcome this Bill. I realize that in the absence of parliamentary sanction the late Government had to take upon themselves the responsibility of doing all that was necessary to protect the interests of this great Commonwealth, relying, of course, upon the patriotism, the good sense, and the justice of the members in both Houses, no matter to which side they belong in politics, to indemnify them to the fullestextent for every action taken and done in connexion with the war. It may be that the present Government will be compelled at some time or other to take action which will not be entirely within the authority of the law. I believe that the members of both Houses will be prepared to support them in anything they may do in that regard. I commend the Bill most heartily to honorable senators.







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