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Thursday, 21 April 1921

The PRESIDENT - The honorable senator is at perfect liberty to refer to the administration of the Defence . Department for the purpose of illustrating his argument, but he has been going beyond that.

Senator PRATTEN (NEW SOUTH WALES) - - Does Senator Elliott say that the Military Board will administer the British Army Act as applied to our Forces, and that, beyond the Board, there -will be no appeal ?

Senator ELLIOTT - That is how I read this Bill.

There is one provision in the- Bill which, is of an admirable character. It is contained in clause 19, and reads -

After section fifty-five of the Principal Act the following section is inserted: - " 56. The application of this Act shall extend to members of the Military Forces * who are serving outside the limits of the Commonwealth."

I am not quite sure that such a provision is constitutional. I am not certain that we have power to extend our Defence Act to wherever our Forces may be serving.

Senator Pearce - - Upon a transport, for example?

Senator ELLIOTT - Is that the intention of it?

There is another provision to which I wish, to invite attention. It is a proposed new section embodied in clause 29 of the measure which provides that no person shall, unless lawfully entitled thereto, amongst other things, sell any badge, and provision is made for a penalty of £50. We are legislating for the youths of the Commonwealth, and here is proposed an absolutely savage penalty of £50 if a boy sells his badge or gives it to his best girl.

Senator Reid - Not "gives"?

Senator ELLIOTT - Yes, the proposed new section makes use of the words " Offer for sale, sell, use, wear, barter, exchange, trade in, five away, or in any manner ' whatsoever dispose of."

Senator PRATTEN (NEW SOUTH WALES) - Is not £50 the maximum penalty and not the minimum ?

Senator Pearce - -Yes.

Senator ELLIOTT - Even if it is the maximum, is there any justification for it?

Senator Pearce - Suppose a man sells his Victoria Cross?

Senator ELLIOTT - This provision does not refer to Victoria Crosses.

Senator Cox - Yes it does.

Senator ELLIOTT - In any case, if a man wishes to give away his Victoria Cross why should he be fined £50 ? Under the proposed' provision, if the mother of a deceased soldier wears his medal she may be hauled into Court and fined £50.

Senator Reid - No. There are many mothers wearing their sons' medals now.

Senator ELLIOTT - There is a provision in the existing law which permits the female relatives -of a deceased soldier to wear his decorations. But that provision is to be repealed by clause 21 of the Bill now before the Senate.

Senator Pearce - No.

Senator Reid - The Minister says " No."

Senator ELLIOTT - Then he has not read the Bill.

Senator Pearce - If the honorable senator had read it as often as I have done, he would not be making the speech he is now making.

Senator ELLIOTT - Honorable senators will see, by reference to the memorandum showing the alterations proposed to be made in the existing Act, that under sub-section (2) of section 80e of that Act, it is provided that -

Nothing in this section shall prevent a female relative of the person upon whom a military decoration has been conferred, from wearing the decoration after the decease of that person.

It is proposed by the Bill now under consideration to repeal that provision, and I have indicated how an unfortunate widow or mother is going to be dealt with.

Senator Foster - The female relative of the deceased soldier cannot, under this Bill, even wear the ribbon of his decoration.

Senator ELLIOTT - That is so. She could not even wear the ribbon. The Minister's interjection shows that he has not read the Bill, but has swallowed it whole from his advisers.

I proceed now to refer to the necessity for inserting in the Bill some new provisions, on the lines of the Army Act, for the' due protection of officers and men who are compelled by the law of the country to serve in our Forces. I hope that the Minister will see his way to accept my suggestions in this connexion. The amendments I propose have been hurriedly prepared, and I trust that some more able person will draft them into shape. I trust that they will be embodied in the Bill, and provision made to enforce them by such sanctions as no officer in peace or in war will be 'prepared to disregard . I intend to propose, in connexion with the consideration of complaints, that-

If an officer whose duty it is to investigate such complaints shall wilfully or knowingly disregard the provisions of this Act, or any regulations for the redress of grievances, he shall, upon proof thereof, be deemed unfit to serve His Majesty in any capacity whatsoever.

That is a drastic provision; but I do not think honorable senators Trill consider it too severe.

Senator Rowell - It is more drastic than the Army Act.

Senator ELLIOTT - Such a provision is not in the Army Act; but I think that our law should, in this regard, be more drastic than the Army Act. "Whilst in words the provision I suggest may appear to be more drastic than the Army Act, it 13 actually not so, inasmuch as under the Army Act the King has power to say to any officer that he shall not serve him any longer. We have not that power here, and we should have .a somewhat similar provision in our laws. I intend, also, to propose that -

If an officer shall; by means of any promise, threat, representation, or other means, induce or persuade any complainant not to proceed with a complaint or appeal which he has made to such officer, or of which such officer shall have knowledge, then, in addition to the last.mentioned disqualification, such officer shall be liable to an action for damages at the suit of the complainant in any Court in Australia.

As a matter of fact, the civil Courts have always regarded the Army as a body te whom the general law of the land does not apply. They say, in effect, " Here is a body of men who, with their eyes open, volunteer to submit themselves to discipline, and with the enforcement of that discipline the civil Courts have nothing to do." There are some very important limitations of that policy, since the Courts will not allow the Military to go too far. 1 can cite some cases to indicate those limitations. Some time,- ago, a man sued his Colonel for flogging Kim. The Colonel set up the plea that it was the custom of the Service to flog a man.

Senator Rowell - Was this an Australian officer ?

Senator ELLIOTT - 'No; this occurred in the British Army. The man brought an action for damages, and the custom of the Service was pleaded by the Colonel. The evidence showed that it was customary to give a man fifty lashes, whereas the Colonel had given this particular man 500 lashes. The civil Court, very properly, found that that was an abuse of the disciplinary powers of the Army Act, and the Colonel had. to pay £1,000 damages. Whenever any case of the kind has occurred, there has been a general howl, suggesting that the interference of the civil Courts would be the ruination of military discipline. That claim was set up in a very famous case, known as Frye's case, which occurred so long ago as 1743, and of which I can give honorable senators the facts. It is a leading authority respecting the liability of all who are parties to illegal sentences passed by courts martial. These are the facts of the case : -

Lieut. Frye, of the Marines, was brought to a court martial at Port Royal, in Jamaica, by his captain for disobedience in refusing to assist another lieutenant in carrying an officer prisoner on board ship without a written order from the captain. Part of the evidence produced against Lieut. Frye at the court martial consisted of depositions made by illiterate natives whom he had never seen or heard of, and reduced into writing several days before lie was brought to trial; and upon his objecting to the evidence he was browbeaten and overruled. Lieut. Frye was sentenced to fifteen years' imprisonment and rendered for ever incapable of serving His Majesty, though the Court had only power to award two years' imprisonment. On his arrival in England his case was laid before the Privy Council, and the punishment remitted by His Majesty.

Some time afterwards he brought an action in the Court of Common Pleas against Sir Chaloner Ogle, the president of the court martial, and obtained a verdict in his favour for £1,000 damages. The Chief Justice Willes, moreover, informed him that ho was at liberty to bring his action against any of the other members of the court martial. Accordingly Lieut. Frye obtained writs against RearAdmiral Mayne and Captain Kenton, which were served on them at the breaking up of another court martial held on Vice-Admiral Lostock, at Deptford, at which they were members.

The members of this court highly resented this proceeding, and drew up resolutions in which they expressed themselves with some acrimony against the Chief Justice, and forwarded them to the Lords of the Admiralty. In these resolutions they demanded " satisfaction for the high insult on their president from all persons how high soever in office, who have set on foot" this arrest or in any degree advised or promoted it." The Lords of the Admiralty laid the resolutions before his Majesty, and the Duke of Newcastle, by His Majesty's command, wrote to the Lords of the Admiralty expressing " His Majesty's great displeasure at the insult offered to the court martial, by which the military discipline of the Navy is so much affected; and the King highly disapproves of the conduct of Lieut. Frye on the occasion."

That was pretty strong.

The Chief Justice, as soon as he heard of the resolutions of the court martial, caused each individual- member to be taken into custody, and was proceeding further to assert and maintain the authority of his office, when the following submission (signed by the president and all the members of the court martial on Vice- Admiral Lestock) was transmitted to him: - "As- nothing is more becoming a gentleman than to acknowledge himself to be in' the wrong so soon as he is sensible he is so, and to make satisfaction to any person he has injured, we therefore, whose names are under, written, being thoroughly convinced that we were entirely mistaken in the opinion we had conceived of Mr. Chief Justice Willes, think ourselves obliged, in honour as well as justice, to make -him satisfaction as far as in our power. And as the injury we did him was of a public nature we do in this public manner declare that we are now satisfied the reflections cast upon him in our resolutions of the 16th and 21st May last were unjust, unwarrantable, and without any foundation whatsoever; and we do ask pardon of his lordship and of the Court of Common Pleas for the indignity offered both to him and the Court." This paper was dated the 10th November, 1746, and on its reception in the Court of Common Pleas was read aloud and ordered to be registered " as a memorial," said the Chief Justice, "to the present and future ages 'that whosoever set themselves up in opposition to the law, or think themselves above the law, will in the end find themselves mistaken."

Senator Gardiner - I think that that should be put into Orders, and sent to the whole of our military officers.

Senator ELLIOTT - That law is in force here, but the Courts make very fine distinctions. If a man is injured in his property or person by the imposition of excessive punishment in the way of flogging, fines, or imprisonment, the Courts will interfere, no matter what protests are made about the danger to discipline. But where a man suffers injury only in his military reputation by being superseded, or otherwise dealt with, the civil Courts will not interfere. The ground they gave was the ground I have given to the Senate, that a man goes into it with his eyes open, and must take the consequences ; he cannot squeal. That posi tion is very different from ours. We compel every member of our community to undergo this discipline, and, therefore, % any injury to an officer in his military reputation or character hurts him in a far wider sense than in the case of the British Army, which is .only an infinitesimal portion of the population. Every man in this country is, or will be, a member of the Forces. Any injury done to an officer in that way which affects his military character or reputation will inevitably reflect upon him in his civil capacity. We should, therefore, enlarge the law so that civil remedies will be given to every officer who suffers injury whether in his military reputation or character or in his civil k character, or property, or person, where he is already protected by the common law.

Senator Pearce - Appointments to courts martial would be very popular^ under those conditions, would they not?

Senator ELLIOTT - There is absolutely no fear so long as the officers act fairly, and without any improper motive. I do not suggest that any officer should be punished for acting in good faith.

Senator Pearce - Of which, under your amendment, they are not to be the judge, but somebody else is.

Senator ELLIOTT - The judges of their conduct will be the same men as are the judges of the conduct of anybody else at the present day. Every day in the Courts the question is tried of whether an act is done maliciously or improperly. If a man has acted bond fide and honestly, he has nothing to f ear either under my amendment or under the common law.

Senator Rowell - Or under the Army Act either.

Senator ELLIOTT - Or under the Army Act, either.

Senator Rowell - They have the right of appeal to civil Courts in certain cases. There was a case a few weeks ago where a permanent officer appealed to the civil Court in New South Wales.

Senator ELLIOTT - I fancy that he appealed, but did not succeed. The position is that where the Court decides that only a man's military reputation is affected, the civil Courts will not interfere. While that law is properly applicable in England to a voluntary Force, it ought not to apply to a Force like ours, in which every man is compelled, willynilly, to serve.

Let me give honorable senators some idea of the wrong that can be done by people in. a position of authority, and the impunity with which the regulations as they now exist can be disregarded. We* have in existence an absolute regulation, which can be produced to any Court, providing that no officer shall be superseded unless he is notified of it, and is given an opportunity of showing cause against it. I am reluctant to bring in anything of a personal nature ; but I want to show the Senate that I have had bitter experience of this sort of thing. I joined up with the first of those who went to the war. 1 had certain success, and eventually became a senior officer available for promotion to a divisional command. I may say that just about that time I had certain differences of opinion with both General Birdwood and General White, and, thinking there was no harm in it, and being a free man, I had expressed my opinions with the utmost' freedom. This final incident, however, occurred. In, March, 1918, the Fifth British Army was shattered by the German attack at the end of the month, and I received orders to march south to assist in repelling the attack. I reached a place called Doullens at about 3 o'clock in the morning, detrained our troops and marched them all night under, orders to take over a billeting area in a certain district. We arrived at the village at daylight. I found that the area, which had been said to be completely cleared of British troops, was packed to the utmost of its capacity with fugitives from the British Army, and, in addition, a small nucleus of officers. I went and found the senior officer of the . Forces there, and discovered him to be an acting staff-captain of a certain British Brigade. To quote from my report on the matter to Major-General Hobbs, my divisional commander -

About 9.30 a.m., together with Major Wootten, of- your staff, and my own staff, I went to the chateau at Hedauville. after reconnoitring a line for outposts in the vicinity of Senlis. I found the chateau literally packed with officers, all of whom were still in bed, and the village full of details of two brigades. At my request Major Wootten interviewed a staff officer, who appeared to be in command. The latter, who was still in a very undressed state, stated that he had no orders whatever about leaving, and until he did so he could not move.

He stated that there were "plenty of other buildings" in the village for me to take as head-quarters, without turning them out.

I said I had no desire whatever to turn them out, but pointed out that my orders re- med from you were to occupy the village of Hedauville with two battalions, and unless his details moved there would not be any accommodation for my men. I would mention that a large number of the latter had travelled all the previous day, and then marched all night from Doullens to Harponville, arriving there at about 5.30 a.m. on the 29th, an 18- mile march.

We were also under orders to be ready to go into the line on an hour's notice.

By this officer not being ready to move out, these men were forced to halt in the fields? sodden with rain falling at the time, and wait his convenience.'

Not wishing to appear the least unreasonable, I told him in Major Wootten's presence that I would try to get a building for headquarters, and leave the men outside until midday, whilst he was getting orders.

I asked him where his division was. He said it was at Senlis. I reported the situation by telephone.

I found a ruined school-house with all the windows shattered by shell fire, and with the yard defiled by human excrement.

I remained here, wet through, until about midday. Meantime I had sent my intelligence officer to Senlis to get in touch with the division.

He returned about midday and informed me that he had been to Senlis, and that the division had gone to Toutencourt leaving two brigades in line under the division, whose headquarters were at Varennes. He mct, however, at Senlis a major of the Machine Gun Corps. His remarks on the subject of the division were literally unprintable. He said he cursed the day he was born a fellow-subject of such mcn. He stated that his Machine Gun Battalion had been attached to them in the line; that they had retired without informing him - " ran away " he put it - and, as a result, he had men and guns captured.

My intelligence officer then inquired of the division at Varennes regarding these details at Hedauville. It was the signal officer that he spoke to. My recollection of the result was that he knew little of them, and cared less, for they had been nothing but a nuisance since they were attached to the- Division.

I then sent for the acting staff captain and asked him had he received any orders yet.

He replied that he had not. I asked why he had not telephoned or gone to Varennes to find out.

He replied that he had no telephone. I told him that I had a telephone he could use, and then, being irritated by his listless manner and want of interest, and by the fact that my men were being drenched to wait his convenience, I told him that I had formed a most unfavorable opinion from what I had heard of his division, and that his own want of energy and initiative were strong confirmation of what I had heard,' and that unless he got orders and moved his men out of the village immediately, I would assume command and march them out of the village, if necessary, under arrest. He then got a " move on," and about 2 p.m. waa clear of the village.

At 6.30 p.m. we -were told that we should be at " 3-hour " notice. We had just settled to rest when at 7.30 p'.m. we were ordered to march within an hour to Corbie to " guard the right flank " of the Third Army.

I at once arranged for this march, called in the outposts and patrols, which had pushed n to Mesnil, and in a car provided by division moved to Franvillers, where I met General Monash. He expressed great astonishment that the men were marching, as Corps had informed him that busses were being provided.

He directed me to push through Corbie both north and south, and hold the line of the Somme. The men who had furthest to go did not reach the position until 5 a.m., after having marched, since .passing the starting point, a distance of 26 miles. Not one man in the whole brigade fell out, but at the end were utterly exhausted. For this fatigue this staff officer was largely responsible. Three hours later they had to be roused and sent into action, as the enemy attacked Hamel.

I should be the last to place undeserved reproach upon any one. On the other hand, I feel strongly that the shielding of incompetent officers and unworthy conduct of individuals, particularly staff officers, can do no good, but adds to the difficulties we are in. I gladly testify to the most gallant conduct of the cavalry of the Third Cavalry Brigade. I shall be glad to give evidence in any Court of Inquiry that may be held in the instance I have mentioned.

That report was addressed to MajorGeneral Hobbs in response to a complaint which this officer had made, and which General Birdwood had received instructions to investigate. Honorable senators will hardly believe the sequel, but this is what happened. Three weeks later General Hobbs called to see me. He said, "I want to speak to you privately," and took me out into the garden. He then said to me, "General, I have instructions to tell you that while you are in the Australian Imperial Force you will receive no further promotion by reason of your conduct to the officers." When he said that, I turned away rather dumbfounded, and he struck me on the back and said, "I have got to tell you that; but, by God ! you were right." It turned out that this staff officer was the son of a Duke, and " put the acid " on General Birdwood - for my conduct, and you see the result. Notwithstanding that, I did not worry very much.

Senator E D MILLEN (NEW SOUTH WALES) - Was that conversation with General Hobbs private or public?

Senator ELLIOTT - Private, but he spoke to me officially as my commander. He did not say it was confidential, if that .is what the honorable senator means.

The PRESIDENT (Senator the Hon T Givens - Order! The honorable senator's time has expired.

Extension of time granted, on motionby Senator Pearce.

Senator ELLIOTT - The sequel was that three weeks or so later I was in-, formed that General Gellibrand, who was my junior officer, was to be promoted over my head, although the regulation which was then in force contained the provison to which I have referred.

Senator Pearce - He was promoted to command the division?

Senator ELLIOTT - The regulation provides that certain action may be taken by an officer who has been superseded by the appointment* of a junior officer over his head, as in my case. Accordingly, I wrote to General White, drawing attention to the' regulation, and expressing surprise that an opportunity had not been given to me of stating my case. I have his letter -

Your letter >has greatly pained me; but I refrain from a detailed reply, as I hope to substitute a visit to you, and perhaps you may wish to withdraw something of what you have written. There are one or two points upon which I must touch. . . . Supersession is an act which is only possible within an. established unit - the battalion, to wit. Once an officer is out of the regimental list his future employment is determined by selection,' and if he is not selected he is not informed of the fact.

I had, in my letter to him, informed him that I proposed to test the validity of the action taken in my case by appealing to' the Minister. This is the way he treats tha't statements -

Finally, you actually threaten me with political influence. You have obviously written hurriedly, and I am therefore not going to regard your letter as written. But let me say this: If the decision rested with me, I should send you off to Australia without the least hesitation if, calmly and deliberately, you repeated your assertion to seek political aid. And if you managed to raise a dozen political and " military " inquiries, I would fight you to a standstill on them.

The position, therefore, was that I had either to submit or be returned to Aus-' tralia as undesirable. We were then preparing for the big attack on the 8th and 9th August, so if I had accepted the terms and come back to Australia, where, would my reputation have been with my' men ? Now, the first instruction to .a recruit is that, as a soldier, if he gets an,' incorrect order, he must carry it out and complain afterwards. I said nothing until the armistice,, and then approached Major-General Hobbs, who had become my corps commander in succession to General Monash, who by this time had gone to London to arrange for the return of our troops. I may say that at that time, and subsequent to the events I have mentioned, General Hobbs and General McCay, under whom I had served previously, had repeatedly, and in the most marked manner, expressed their belief in my capacity to command. As a matter of fact, I omitted' portion of General White's letter which may be eft some interest in that respect -

Do you think that any one doubts your courage? No one in the Australian Imperial Force, I assure you. Or your ability? It is well known. But you mar it by not keeping your judgment under complete control.

By not "kow-towing," in other words, to unworthy staff officers with political and social influence.

Senator E D MILLEN (NEW SOUTH WALES) - But; apparently, you were threatening to use political influence yourself, by saying that you intended to appeal to the Minister.

Senator ELLIOTT - Yes, because under the Defence Act regulations, the Minister for Defence is the ultimate Court of Appeal. .

Senator Pearce - I am glad to have that admission. Hitherto, you have denied it.

Senator ELLIOTT - There was absolutely nothing against me on the score of capacity to command or lead, so honorable senators will see that the regulations should be very carefully scrutinized in order to prevent injustice and to give an officer a chance to have his case reviewed. At present, when the rear test comes, they prove futile.

I come now to a later stage in the story. On my return to Australia, I was appointed to the corresponding command which I had held in the field, the 15th Brigade, here. Under the provisions of the Defence Act, officers of the Citizen Forces can only be appointed by promotion from the ranks, and promoted to higher ranks, in accordance with the regulations; but recently, when certain divisional commands were being allotted, this course was departed from. Sir John

Gellibrand was then in Tasmania, and at a send-off dinner he said that the reason he had accepted a position in Victoria was that he had been promised a divisional command. I asked the Minister at the time if this was so,, and he denied that any promise had been given.

Senator MILLEN (TASMANIA) - I do not think Sir John Gellibrand said that he was promised a command. I think he said he was going over to take some position.

Senator ELLIOTT - His words were, " I have been promised a command," and when I questioned the Minister on the subject he said he assumed Sir John meant that he was coming. over to Vie* toria in order to be available for a command, notwithstanding the fact that 'his appointment would be absolutely illegal. la order that I should not lose my rights by sleeping on them, I at once wrote, to the Board and asked why I had been again superseded." My letter was dealt. with ia due course, and. this is the reply I rerceived from General Brand -

I am commanded by the Military Board to acquaint you,, for the information of Colonel (Hon. Brigadier-General) H. E. Elliott, CIB., C.M.G., D.S.O., D.C.M., with reference to your C. 21/8, of 16th March, 1921, that the further representations made by that officer have been considered by the Board.

The Minister now says that he can bo appealed to; but the Military Board dis-; agree with the. Minister) and say that I have to take their ruling. My reading of the Act is that Cabinet, the King, in Council, and in Australia the GovernorGeneral in Council, is the. ultimate Court of Appeal. I want to point out that om the Military Board there is only one man, General White, who can speak with authority. I have appealed from him te himself, and honorable senators can see the result. Surely there is something wrong in regulations which allow this. I had asked the Board for an inquiry te be held before a Judge of one of the civil Courts, and they raised the cry that was raised 200 yeaTS ago and was dealt with by a British Chief Justice -

Quite apart from this aspect of the case, it has never been customary, nor is it at all advisable, that a purely military matter should' be inquired into by a Supreme Court Judge, or other , civil Commissioner.

For 200 years -it has been the custom te overrule harsh decisions of military officers.

SenatorWilson. - And that practice ought to be continued.

Senator ELLIOTT - It ought to be extended. I am endeavouring to convince honorable senators of the absolute necessity of testing illegal and arbitrary acts by military officers in the civil Courts of the country. General Brand's letter continues -

I am further to say, in) reference to the contention of Brigadier-General Elliott, that he has been superseded - (a) It is the custom of the Service to promote senior officers, and appoint them to commands by selection, and not seniority. Frequently the choice lies between several good and well-qualified officers, and those not selected can have no just right or cause to cavil atthe action of those whose duty it is to makethe selection.

There is no doubt about the general proposition. There ought to be power to select, and where the choice lies between officers, equally qualified, it is obvious that the appointment ought to go to the senior officer, otherwise an officer senior in the Service might be called upon to take his orders from a junior; and no man would care to get a slap in the face like that, specially when, as in my case, neither the courage nor the capacity of the senior officer is called into question.

Senator Wilson - No wonder the privates growl a good deal about military discipline when officers get treated like that.

Senator ELLIOTT - That is the point I am trying to make. If, under the regulations, an officer in my position and of my standing can be treated with contumely, what chance has a junior officer or a private of getting justice?

I think I have said enough to convince honorable senators that the Act requires more drastic amendment than is provided for in the Bill now before the Senate, and I trust that when I move certain amendments in 'Committee I shall have their support, in order to do away with the possibility of such things occurring in the future. As far as I am concerned, the matter will not affect me, because I am so sick of the whole business that I have sent in my papers. I shall no longer serve in the Citizen Forces of the Commonwealth under the present heads. But I have a boy ten years of age who will ultimately have to undergo training under these conditions, and, so far as I can insure it, the conditions are going to be better than they are at the present time.

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