Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Thursday, 21 April 1921

Senator DRAKE-BROCKMAN (West ern Australia) . - My friend, Senator Pratten, has, I think, deliberately set out to try to draw on this Bill those members of the Senate who have served in His Majesty's Forces. So> far as I am concerned he has succeeded in drawing me. I do not propose to deal with all the subjects that have been brought up this afternoon at any great length, because this must be regarded as in a great measure a Committee Bill, and there are many provisions in it that need very careful consideration before we adopt them. The first thing that, needs most careful consideration by the Senate is the proposal to adopt the whole of the British Army Act and incorporate it in this measure. Particularly is that a large pill to ask the Senate to swallow when honorable senators have not had an opportunity of examining that Act. Consequently, it is an advantage that those members of the ' Senate who have worked under the Act should express their opinions regarding it.

I am sure Senator Pratten will be glad to know my opinion of it. I have no hesitation in saying that the British Army Act is one of the most perfect specimens of draftsmanship in existence on any statute-book in the world. It is not a thing that has been thought out in five minutes. It has been growing and developing with the British Army. In it is incorporated the experience of 300 or 400 years of soldiering in peace time and soldiering in war time. We who were in the Australian Imperial Force had an opportunity of appreciating the merits of that measure, and so far as I know the members of the Australian Imperial Force have not suffered by reason of- the fact that they were administered under it. Ex-soldiers here this afternoon have said clearly and distinctly that the form of trial used on active service for soldiers is the fairest form of trial that exists under any system in the world. With that I entirely agree.

Senator PRATTEN (NEW SOUTH WALES) - Would you qualify that by saying " military form of trial " ?

Senator DRAKE-BROCKMAN - I shall do nothing of the sort. I shall stick to my guns and say it is the fairest form of trial I have ever been associated with or have ever read of. I need not remind honorable. Senators that I have had some little experience in the Courts of Law in at least two States of Australia, and, moreover, I have appeared in several capacities in connexion with many courts martial on active service. I - have presided over many courts martial on active service, I have been a' member of many courts over which I have not presided on. active service, and I have no hesitation in giving my opinion in very definite terms. I agree with the Minister for Defence (Senator Pearce) that it is very desirable that the Act which governs the Military Forces of Australia should be the same in peace as in. war. Did this Parliament hesitate to send the men .of Australia on active service to be governed by the Army Act? Net in the least. I would remind the Senate that - and in some respects it was a rather fortunate thing - that Act was being administered by Australian officers 10,000 miles away from this Parliament and from public criticism in Australia. Can honorable senators point to any occasion when those Australian officers abused the confidence that this Parliament placed. - in them.? Mistakes may ' have been made, but they were very rare. If, then, Parliament- was prepared to trust the men of Australia 10,000 miles away from home, and from the criticism that counted, and from this Parliament, how much more, ought it to be prepared to trust Australian officers to administer this Act here, where there is a very free press, which certainly does not hesitate to criticise anybody and everybody^ and a Parliament that is most vigilant to see that no abuse is perpetrated under this or any other Act?

Senator Gardiner - Do you not think that we, who do not know the Act, should have it before us?

Senator DRAKE-BROCKMAN - I have said that the Ministry are asking this Parliament to swallow a very big pill in expecting it to accept the Army Act, which members have not had an opportunity of seeing or reading. It "is because they have not had an opportunity of seeing or reading it, and because I have had an opportunity of working under it, that I thought that the members of the Senate would like to have my opinion on it. I have given that opinion as straight a3 I know how to give it. If honorable senators were prepared to trust Australian officers to administer that Act when there was practically no possibility of criticism, why do they hesitate to allow Australian officers in peace time to administer the same Act, when they have every opportunity of watching most carefully everything that those officers do ? . Senator Earle. - Does the honorable senator say that the Act is as applicable to the Citizen Forces of Australia as it is to the Permanent Forces of England ?

Senator DRAKE-BROCKMAN - I do. I say that that Act, administered by conscientious and capable officers, is such a perfect document, and of such perfect draftsmanship, that it is just as applicable to the Citizen Forces of Australia in time of peace as it is to the Forces of Australia, or of the Empire, in time of war.

Senator PRATTEN (NEW SOUTH WALES) - Do you not think the lay members of the Senate ought to have an opportunity of judging, too?

Senator DRAKE-BROCKMAN - I agree with the honorable senator.

Senator Rowell - It was embodied in the South Australian Act and was operative until Federation.

Senator DRAKE-BROCKMAN - It was, and I believe it was embodied in the West Australian Act. I arn not sure about tha other States, but I fancy that most of the Forces in Australia, at one time 'or' other, have been administered under that Act. Those -who are familiar with the Australian Defence Act and regulations, and have tried to work under it, can bear me out that it is a most indifferent instrument to work under, as compared with the British Act. It is a thing that- was produced a few years ago, and' it has disclosed many weaknesses. If I had the choice as to which I would administer or under which I would be administered, I should have no hesitation in accepting the British Act.

Senator Elliott - Why not bring it in in the Bill «

Senator DRAKE-BROCKMAN - That is not my business. Perhaps it would have been a great deal better if the Ministry had seen fit to bring down the whole of that Act as a new measure for us to consider in detail. However, that has not been done, and because it has not been done I desire to give the Senate the benefit of what little experience and knowledge I have of it, so that the pill which the members of the Senate ure asked to swallow may have a little coating of sugar on it before they try to digest it.

There is one matter which my gallant and distinguished friend, Senator Elliott, has referred to and in referring to which he has ' displayed the same courage that he was so celebrated for in the field'. He has not hesitated to bring up a matter which concerns himself very closely, in order to illustrate what he considers a great defect in our present system. He has pointed out that when an officer of his seniority has to appeal to the Military Board, it is a case of appealing from Caesar to Caesar; because, when you boil it down, the only man who can give a ruling or an order that can affect a man of the gallant and distinguished senator's seniority in the Military forces, is a member of that Board. When he is dissatisfied with any ruling that may be given against him, ' he is virtually compelled to appeal to the same man as has already decided it. I do not propose to go into the merits or otherwise- of the honorable senator's complaint, but it is a matter that ought to be considered by the Government, so that, when a senior officer feels that he has a grievance, there may be some Court to which he can appeal for finality and satisfaction. I am most careful not to go into the merits of the matter that my gallant and distinguished friend referred to this afternoon. I know nothing more about it than he has told us here, and we have heard one side, but, with the courage for which he is so famous, he has not hesitated to illustrate here, with his own personal experience and grievance, what he considers to be a grave defect in our present system. I am very much inclined to agree with the honorable senator that there should be a further appeal to the Governor-General and the Executive Council from the decisions of the Military Board.

Senator Pearce - Would you confine that appeal to senior officers ?

Senator DRAKE-BROCKMAN - I was about to point out that the Military Board may be a very useful final Court of appeal from decisions affecting lower formations. That is to say, where a commanding officer has given a decision that affects any one junior to him - and by "commanding officer" I mean, broadly speaking, anybody who is in command of a unit, that is, from a colonel downwards - an appeal from him to the Military Board, or to the divisional commander first, and finally to the Military Board, may be effective. There a man is not appealing from Caesar to Caesar, but, in the case of a senior officer, I think I describe the appeal correctly in an appeal from Caesar to Caesar However, there is no reason why the matter should' not be carried further, just as it is under the British system, where there is a final appeal in every case right up to His Majesty. Why should it not be the same here? That system is the result of hundreds of years of experience. It must be remembered that that perfect piece of legislation to which I have already referred was designed- not merely to effect discipline but also' to protect the people who were disciplined. While I advocate the introduction of this Bill, I also think it would be advisable to accept the suggestion made by my gallant and distinguished friend, General Elliott, that we' should adopt the British system of appeal to His Majesty's representative in Australia. I dp not suggest, as Senator Pearce thought I did, that this right of appeal should be confined only to senior officers, but, . if it were, and the present Board were the final Court of Appeal for everybody else, we would probably have a very good working system.

I comer now to the comments made by Senator Pratten,1 whose remarks, _ in a great measure, were instrumental in inducing me- to address the Senate. In the course of his speech he criticised two very distinguished officers who have been associated with the Australian Imperial Force. His first criticism was levelled against General Birdwood, whom he characterized as a . "limelighter." If General Birdwood were merely a "limelighter," why was he received so enthusiastically by the "diggers" of Australia on the occasion of his recent visit? I am not here to defend General Birdwood. I think that his reception by our soldiers was a greater defence than any words of mine could possibly be. He is not only a. very able and distinguished General, but I have no hesitation in saying he created for himself an affection from the men who served under him that is seldom inspired by one man towards another.

Senator PRATTEN (NEW SOUTH WALES) - There are two opinions about that.

Suggest corrections