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Friday, 23 April 1915


Senator PEARCE (Western Australia) (Minister of Defence) . - I move -

That this Bill be now read a second time.

The measure does not contain any important principles. It is largely like the one we dealt with yesterday, its object being to fill up gaps which have been discovered. The most important thing it deals with is fixing the application of the Army Act. Under section 55 of the principal Act, when Defence Forces of the Commonwealth are called out for active service, the Army Act applies, but the Act is somewhat vague. It is desired to make the Act more definite, to show that it applies within or without the limits of the Commonweal tli, and an amendment is submitted for that purpose. At the beginning of this session we passed an amending Defence Bill, which was intended to legalize the raising of Expaditionary Forces. As honorable senators are aware, on the outbreak of war this Government took the necessary action to raise Expeditionary Forces. There was really no complete authority in the Defence Act for that purpose, and the Bill then brought in was to legalize the action, but, unfortunately, it was not dated back to thecommencement of the war, and, therefore, it only had effect from the date of its being assented to, which, of course, was subsequent to the raising of the Expeditionary Force sent to New Guinea. It is desirable that we should bring these actions of the previous Government within the scope of the law. I may say that certain action in connexion with the first Expeditionary Force, although it has bsen disbanded, has become necessary; and in order to make quite sure that we can take that action under the Defence Act, it is essential that we should date the amending Bill back to the 1st August. Therefore an amendment is brought forward in this measure.


Senator Needham - But war was not declared until the 4th August.


Senator PEARCE - Certain action was taken as soon as it became known that the position was strained, Snd that war was likely to be declared; it was thought best to make sure. Again, in raising permanent forces, there are restrictions as to the kind of forces which can be raised. It has become necessary that we should have a survey branch associated with the Defence Department. There are certain portions of the Commonwealth, notably near defended ports, where it becomes essential for defence purposes that there should be a vary minute survey of the land, and that survey has been going on for some time. But there had to be an authority in the Defence Act to authorize the appointment of a survey corps, and therefore we now ask for an amendment to be made. In connexion with these surveys, the surveyors have to enter upon private lands and put marks there in order to determine the contour of the country. At present there is nothing to" safeguard the Department if any of the marks are removed or tampered with, and therefore it is necessary that we should have power to protect them. Of course, if any damage is done to land, the owner is entitled to compsnsation, and provision is made by which compensation can be recovered. That provision is made in the principal Act, but it is necessary that the survey parties should have the power to put up marks on private land in order to carry out their work. The Bill contains a clause of a rather important character, dealing with the allocation of money to the dependents of soldiers in the Expeditionary Forces. On this matter the Department has come in for a considerable amount of criticism. But in very many cases the delay in the payment has on investigation been discovered toibe due to the fact that some married men gave to their wives an undertaking - in some cases a letter - that they would allocate a certain amount of their money to them, but they signed the attestation form as single men, and did not fill out an allocation order after the troops had left Australia.

Honorable senators will see that allocation orders would not come into effect until after the troops had left Australia. A soldier is paid directly until he leaves the Commonwealth. The position in regard to these men would not be discovered until some little time after the troops had left. Very frequently the first information the Department received was by means of a letter from a member of Parliament complaining that some woman had not received any payment, or of a letter in the press, complaining that a woman had not received the amount allotted to her. On investigation it was found in very many cases that no allocation order had been left by the soldier, and in some cases that the soldier had signed as a single man. Where the woman was able to establish that she was married to the soldier or to produce a letter - and this applied in some cases to other than married women - and we could compare the signature of the man with the signature on the attestation form, and satisfy ourselves that it was a genuine case - this occurred in the case of illegitimate children where the man had promised the woman that certain payments would be made, and given an undertaking that he would issue an allocation order - the Department, acting upon that information, and without any authority from the man, has allocated money, and I think honorable senators will agree that it is the right thing to do. We want legal authority for that action. There are many cases where, unless that authority is given, it is quite on the cards that if these soldiers come back the Defence Department may be held liable to pay them the full amount of the money so allocated, because we have acted without authority from the soldier concerned in what we have done. It is only right that the persons whom these soldiers have left behind, and who were dependent upon them, should receive a certain amount of their pay. We are, under this Bill, asking that where no allocation order has been made, and the Minister is satisfied upon proof submitted that an allocation order should have been made, we may allocate a certain sum. In order to legalize what has already been done in this way, it is provided that this clause shall operate as from- the 1st August.


Senator Bakhap - Has it been discovered that a large number of married men' have signed on as single men ?


Senator PEARCE - When we are dealing with a force of 70,000 men, the honorable senator will understand that, though there may be a considerable number who have done so, they do not represent any large proportion of the Forces. Another matter with which the Bill deals, and which I admit requires some con-* sideratiou, is the provision sought to bemade where a citizen soldier is discharged by an employer because he has absented himself in order to attend to his military duties. Under the principal Act, an employer is liable to a fine if he discharges an employe because he has absented himself from his service for the purpose of carrying out military duties, such as attendance at camp, or at a drill or parade properly called. It is provided further that the onus of proof that the citizen, soldier has. not been discharged for this reason lies upon the employer. The opinion was expressed at the time this section was passed that it would be found to be inoperative, but I can assure honorable senators that I do not know of a single case of a prosecution under the section in which we have not succeeded in having the employer fined. Of course, every case reported is sent on to the Crown Law authorities to say whether a prosecution would be likely to be successful. An important point has arisen for consideration. The citizen soldier discharged for having attended his military duties suffers the loss of his employment, and it is no recompense to him that his employer should be fined. He loses hia employment and his wages, and may for some time be out of work. We consider that in such a case the Minister should have power to direct that the whole or any portion of the fine imposed upon an employer under the section should be paid to the soldier to recompense him for the loss of his employment. These cases are Vied before stipendiary magistrates, and when such Courts find that a soldier has been discharged from his employment by reason of the fact that he has absented himself for the purpose of carrying out duties which he is compelled by law to perform, we think it is not unreasonable that the Minister should have power to say, if- a fine is recorded against the employer, " This man lost three weeks' wages, and I award him so much of the fine imposed upon his employer as amounts to three weeks' wages."


Senator Shannon - What is usually the amount of the fine in such cases?


Senator PEARCE - The employer in such a case may be fined up to £100 under the section. The highest fine I know to have been recorded was £50, and usually the fine imposed has been £25. The practical operation of the section at present is that both employer and employe are punished. The employer is fined for discharging his employe, and the employe is penalized by the loss of his employment for faithfully carrying out his military duties. We do not think that that should be so. Where it is proved that a man has been discharged from his employment because of his attendance in the performance of his military duties, he certainly should not suffer. It is generally regarded as a vicious' principle that a private person should benefit pecuniarily as the result of the prosecution of another person by the Government. Lawmakers generally set their faces against provisions having that effect, because it is said that they have a tendency to encourage bogus prosecutions and tha getting up of faked cases. But in cases arising under this section, the military authorities first satisfy themselves that there is a prima facie case. The papers are then sent on to the Crown Law officers, who go into them, and recommend whether a prosecution should follow or not. I do not know whether honorable senators will consider an adjournment of the debate on the second reading of this Bill necessary. I spoke to the Leader of the Opposition on the subject; he had a copy of the Bill, and he told me he did not see that there was anything in the Bill that necessitated delay in passing it. If honorable senators are prepared too go on with the consideration of the Bill now, I shall be pleased ; but if they require an adjournment of the debate, I shall raise no objection.

Senator KEATING(Tasmania) £11.21]. - I have just heard the assurance of the Minister that he had a conversation with the Loader of the Opposition with regard to the passage of the Bill. I had not an opportunity of seeing, the Leader of the Opposition before he was recalled to Sydney, but I can- quite understand his saying that he saw no reason for an adjournment of the debate on the second reading. It rests with the Senate to say whether the measure shall be proceeded with now, or the debate adjourned.







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