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Friday, 30 April 1915


Senator PEARCE (Western Australia) (Minister of Defence) . - I should probably not have intervened in the debate, but as I understood that another Bill will shortly be before us, I may perhaps be permitted to say a few words now.

First of all, I do not think some honorable senators have been quite just in referring in such scathing terms to courtsmartial. I anticipate that a most important court martial will be held shortly, and I invite honorable senators to attend it. I am satisfied that if they do, a good many of their misapprehensions will be removed. There are some respects iu which a court martial is a fairer tribunal than a civil Court. Of course any court is vitiated if the persons comprising it are either corrupt or prejudiced. That applies to civil Courts as well as to military. If the Judge of a Court or the president of a court martial is corrupt, or a person who will not give justice, the mere fact that he does or does not wear a uniform will not make him any different. In the case of a court martial the president has thrown upon him an obligation which the magistrate has not. That obligation is clearly stated in the military regulations providing for courts martial. The president of the court has to be the friend and representative of the person charged..


Senator Guthrie - Does not that apply to a Judge?


Senator PEARCE - No ; the civil magistrate is not so charged. It is clearly laid down in the instructions to the president that he has to secure justice for the prisoner, and to see that the prisoner's case is fully presented; and he must interrogate witnesses on behalf of the prisoner.


Senator Guthrie - That is the case with a Judge.


Senator PEARCE - It is not. I have had a talk with legal authorities on the question, and they have assured me that there is a distinct difference between the obligation laid on the president of a court martial and that laid on the Judge of any civil tribunal; and that difference is distinctly in favour of the prisoner. The president has to watch the case in the interests of the person charged. Again, in courts martial the prisoner can be represented by counsel. When that point was made in another place it was poohpoohed with the interjection, " Oh, yes, the prisoner was represented by a corporal," the assumption being that as the judge-advocate, who was the prosecutor, was an officer, the prisoner was at some disadvantage. As a matter of actual fact that corporal was in his private capacity a solicitor, -with much longer experience, and a higher standing in the pro fession, than the officer who happened' to be conducting the prosecution. Those are some of the things upon which this misapprehension is built up. True, the prisoner was defended by a corporal, but he was ode ended equally as well from the point of view of legal talent as he was prosecuted. Australia has a citizen army, and the power of proclaiming martial law and doing away with civil trials will only be exercised when invasion takes place, and the civil tribunalsare not available, having probably been swept away. In the event of such an invasion, our Australian forces will not consist of the few permanent gunners at the forts and a few permanent officers, but of over 140,000 citizens - civilians, not militarists. They will not be these tyrannical military people who are held up as such a bogy, but carpenters, sailors, coachmakers, miners, and lawyers. These men will, for the time being, be the terrible militarists. Those who will constitute these tribunals will not be Prussian militarists, but civilians who, for the time being, are military officers, because for that force of 140,000 we shall requireprobably from 1.2,000 to 15,000 officers, whereas if we took all the permanent officers that we have in Australia to-day wecould not muster 1,000, or anything like it. The overwhelming number of them would therefore be civilians who had for the time being donned the uniform. Thereis no objection to many of these men who follow the profession of the law beingmade civilian magistrates or Judges, with power to try cases and inflict thedeath penalty; but, according to my honorable friends, if we put the military uniform on them they suddenly become tyrants, and, therefore, suspect. Suddenly their ability to deal out justice is to be doubted, because for the time being they are dressed in military uniform.


Senator Guthrie - How many navvies are likely to be presidents of courts martial ?


Senator PEARCE - The navvy has an opportunity for the first time in our history to become an officer. The honorable senator may not know that thegreat majority of the men who are qualifying at the military and naval colleges are the sons of working men, and won their positions there by competitive examination. Under the system, as -regards promotion in the Citizen Forces, every step has to be won now by competitive- examination. The man who goes out to Broad meadows can win his way by competitive examination, and obtain a commission before leaving Australia, and many have done so.


Senator McDougall - A lot more have not,


Senator PEARCE - Of course, they cannot all be officers. Many have failed, but many more have succeeded.


Senator McDougall - A number have bought commissions.


Senator PEARCE - That is a foolish statement, because a commission cannot be bought in our Army.


Senator Guthrie - Can a man in the Navy rise to the position of a navigation officer ?


Senator PEARCE - The position of a navigating officer can be reached through the Naval College.


Senator Guthrie - Not by a man in the Navy.


Senator PEARCE - No, but we have laid down the avenue through which our naval officers shall come, and that is the Naval College. We have made the entrance to that college competitive examination, and 85 per cent, of the boys in the college have come direct there from the primary schools.


Senator McDougall - What chance has the Tingira boy of becoming an officer ?


Senator PEARCE - He has not the same chance, because the Tingira is not intended as an officers' training school. The honorable senator might as well ask what chance a man going into a boilermaker's shop has of becoming a doctor. He has to go to the right training school. We have decided to train our officers in the Naval College, and to train our ratings through the Tingira. If a boy elects to try to become an officer he must go in throughthe door of the Naval College. If he is content to be merely a rating he goes on to the Tingira to be trained. He can elect which of the two doors open to him he will try to enter.


Senator McDougall - Have you not made provision for a certain number of boys on the Tingira to reach the quarterdeck?


Senator PEARCE - We have provided that where a boy shows special aptitude on the Tingira he shall be given : an opportunity to qualify. That applies only to a certain number in the year. Take the case which Senator McDougall dealt with of a sergeant who in time of war was in charge of men, and came to his duty drunk. The honorable senator brought that forward as a case of possible injustice arising through a trial by court martial. This is a time of war, and not of peace. What a beautiful example that sergeant set to the men under him ! Could we afford to shut our eyes to that aspect of the matter ?


Senator NEWLANDS (SOUTH AUSTRALIA) - What would happen to him in Europe ?


Senator PEARCE - If he was at the front he might possibly get a much severer sentence. I do not think Senator McDougall contended that justice was not done in that case. In fact, I am sure he will admit that justice was done, but he mentioned another case - and he has given me the name privately since - of an officer who, he says, came on duty drunk, and was not court niartialled. I cannot recollect the case, and should like an qpportunity to look it up. So far as I can I shall endeavour to see that the officers get exactly the same treatment as the men. Senator Guthrie brought forward another case, and I do not thinkhe could have chosen a better one to show that even the present Minister of Defence, with all his faults, can be fairly trusted to do justice. It is alleged that the captain of the ship signalled that a mutiny had occurred, as his firemen had refused duty. I am not going to express an opinion as to whether that was true or not, but Senator Guthrie will not refute my statement that that was the signal that was made. What was the military officer to do?


Senator Guthrie - He did not inquire into it.


Senator PEARCE - How could he inquire ? He was not in charge of the ship. He had to act. The honorable senator forgets that when a ship is taken for transport duty the captain, and not the military officer, has command of the crew, and is responsible for what he and those under his command do. If the captain says that the men have refused duty, one of the duties of the military officer is to enforce the authority of the captain. He knows nothing about navigation. The men on the ship are not under him.


Senator Guthrie - Wait till we get the magistrate's report on the case.


Senator PEARCE - The honorable senator did not wait. The question is whether the captain was justified. The union brought the case before me, and I immediately saw that there was a reasonable ground for difference of opinion, and at once ordered a magisterial inquiry and not a court martial. We were dealing, not with military or naval people, but with civilians, and in such a case I say unhesitatingly that a magisterial inquiry is better than a military tribunal. Surely Senator Guthrie could not have mentioned a case more apt to show that people can have confidence in a court martial.


Senator Guthrie - The point I wanted to make was that the inquiry ended three months ago, but that there has been no decision yet.


Senator PEARCE - I can assure the honorable senator that I have not yet had the final report of the magistrate. The case is sub judice, and I do not intend to express an opinion as to whether the Government were or were not justified until I do get his report.


Senator Guthrie - These men are suffering all the time because of the delay, with the report.


Senator PEARCE - I do not think that the men are suffering any more than the expedition was suffering.


Senator Guthrie - Some of them cannot get another ship.


Senator PEARCE - While you have the statement of the men on the one hand, you have on the other the statement of the commander of the expedition that his journey to the place where he was going was delayed as the result of their actions.


Senator Guthrie - For how long - ten minutes ?


Senator PEARCE - For longer than that.


Senator Guthrie - And there were other reasons for that.


Senator PEARCE - These alleged reasons are the subject of a magisterial inquiry. As regards the amendment itself, I "did feel that the clause was one which was nob likely to be abused. However, another branch of the Legislature thought that, instead of leaving the civil trial optional it was better to make it obligatory, and there is in this the advantage Senator Bakhap has pointed out. In the absence of the amendment a person ill-informed in the law might not know what he could do; per haps his attention might not be drawn to the fact that he could appeal to a civil tribunal, and therefore he might not exercise his right. But under the amendment such a person will have the right preserved to him, and the exercise of the right will not need to rest on his initiative. Therefore, I suggest to Senator Newland that as it does not weaken the power todeal with any situation which may arise we might very well accept the amendment.


Senator NEWLANDS (SOUTH AUSTRALIA) - I am not going to divide the Committee.







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