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Wednesday, 11 May 1921

Senator ELLIOTT (Victoria) . - I am much obliged to you, Sir. I was under the impression that the fact that 1 had given notice of the amendment would ins ore it being called on at the proper time. In the new clause which I have circulated, my object 13 to incorporate in our Defence Act two of the most desirable sections of the British Army Act. Senator Foll drew attention to sections 42 and 43 of that Act. Section 42. provides -

If an officer thinks himself wronged by his commanding officer and, on due application made to hun, does not receive the redress to which he may consider -himself entitled, he may complain to the Army Council in order to obtain justice, who are hereby required to examine into such complaint, and, through a Secretary of State, make their report to His Majesty, in order to receive the directions of His Majesty thereon.

The footnote to that section is as follows : -

This section does not limit the right of the Sovereign to receive complaints, hut only controls the manner in which officers thinking themselves wronged are to approach the Sovereign.

Therefore the British Army Act, which has been described here as a perfect code, endeavours in this regard to provide ample means whereby an officer may appeal to the Sovereign to redress his wrongs. Section 43 of the British Army Act provides -

If any soldier thinks himself wronged in any matter "by any officer other than his captain, or by any soldier, he moy complain thereof to his captain, and if be thinks himself wronged by his captain, either in respect of his complaint not being redressed or in respect of any other matter, he may complain thereof to his commanding officer, and if he thinks himself wronged by his commanding officer, either in respect of his complaint not being redressed or in respect oof any other matter, he may complain thereof to the prescribed general officer, "or, in the case of a soldier serving in India, to such officer as the Commander-in-Chief of the Forces in India, with the approval of the Governor-General of India in Council,, may appoint; and every officer to whom a complaint is made in pursuance of this section shall cause such complaint to he inquired into, and sholl, if . on inquiry he is satisfied of the justice of the complaint so made, take such steps as may be necessary for giving full redress to the complainant in respect of the matter complained of.

Under the Army Act, therefore, very fair and ample provision is made for the redress of grievances. In the case of a soldier there appears to he a .sort of complaints officer, to whom he may resort for the redress of his grievances. When it was sought to import the provisions of the Army Act' into our Act, the. Minister (Senator Pearce) admitted that these sections would not be applicable to our soldiers, inasmuch as there were more or less similar provisions made under regulations for the redress of our soldiers' grievances; but, as I have pointed out on numerous occasions, that is by no means satisfactory to the officers and soldiers who have to serve under them, inasmuch as the regulations can be varied at the sweet will of the Military Board and the Minister.

Senator PRATTEN (NEW SOUTH WALES) - But if the Army Act is operative in time of war, are not the whole of the provisions of the Army Act, including these provisions, operative?

Senator ELLIOTT - I believe that actually that is the legal position, and I am at present obtaining counsel's opinion to establish that fact. I believe that our regulations, where they purport to provide a different procedure, are ultra vires; hut the Minister has insisted, in his replies to various questions that I have addressed to him, that it is our regulations that apply, and that the Army . Act has nothing- whatever to do with the Australian Imperial Force or any other Australian Force which is serving abroad. I' think he is unsound in that contention, and that, consequently, the acts of his officers who refused to recognise the authority of the Army Council in regard to out officers were absolutely wrong and illegal, and that the Minister and all his. officers are liable to actions for heavy damages. That point may be established later; but the .position taken up at present -by the Minister in regard to all these applications for the redress of wrongs is, first, that the Army Council does not apply, and, second, that the remedy, if any, lies with the Governor-General here. Yet we have the case of that unfortunate officer, Captain McLennon, who, in defiance, more or less, of . General Birdwood, sent the papers, home to his father and got him to approach Senator Pearce, and afterwards received a letter from Senator Pearce saying, " You cannot have an appeal, because General Birdwood is the sole authority to deal with the matter." So that the unfortunate soldiers were caught both ways.

SenatorPratten. - The Minister actually superseded the Army Act himself?

Senator ELLIOTT - Yes, so far as I can gather; but I have failed to draw that admission out of him. He has denied in so many words that he interfered with the Army Act, but, in' effect, that is what happened. The combined authority of the Minister and General Birdwood prevented an officer or man from having any appeal, and that is still being persisted in here.

Senator PRATTEN (NEW SOUTH WALES) - In spite of the Army Act?

Senator ELLIOTT - Yes. I shall,.therefore, propose these amendments which embody all the principles in sections 42 and 48 of the Army Act, in order to provide some authority which the Minister and his permanent officers shall be obliged to respect by an. appeal to the civil law. The provisions of the new clause, as I see them, are merely a codification of what is the common law of the realm. I think if officers and soldiers had money enough to fight the Commonwealth, the principles which I have endeavoured to embody in these amendments would be found to be the principles of common law, but it. is a very serious matter for officers or soldiers, who have not much money to spend, to have to fight, perhaps right up to the Privy Council, to establish those principles. It is,' therefore, for the guidance of 'the Minister and his officers, as much as for the assistance of the soldiers, that I am endeavouring to have the law codified and laid down in this. way.

Senator Drake-Brockman - "While the honorable senator is dealing with that matter, I suppose he has before him the amendment circulated by the Minister?

Senator ELLIOTT - Yes. The objection to the Minister's amendment is that it is not to apply, in time of war, and that the soldier, whatever redress he. mayhave in time of peace, is to have none in time of war.

Senator Pearce - Oh, yes, he will. The Defence Act does apply in time of war.

Senator ELLIOTT - The Minister states specifically, in the amendment he has circulated that it shall not apply in time of war. For instance, paragraph d of proposed new sub-section 5 of the proposed' new section 123h provides -

If he' thinks that he has been wronged by the general or other superior officer specified in the last preceding paragraph, either in respect of his complaint notbei ng redressed, or in respect of any other matter, he may, except in time of war, complain to the Military Board-

That is no good at all.

Senator PRATTEN (NEW SOUTH WALES) - Your amendment applies in time of. war, and the Minister's in time of peace?

Senator ELLIOTT - That seems to be the case.

Senator Pearce - That is not correct. Read' the whole clause, and you will see that it is not correct.

Senator ELLIOTT - I will finish reading that clause -

He may, except in time of war, complain to the Military Board, or, if the Military Board is not at the time constituted, to the general officer commanding the Australian Military Forces in which the soldier is serving.

Senator PRATTEN (NEW SOUTH WALES) - General Birdwood, for instance?

Senator ELLIOTT - Yes. It is further provided' in . proposed new subsection 6 -

Any complaint made in pursuance of the last preceding sub-section shall be made through the proper channel.

Senator Pearce - The phrase " except in time of war ". does not govern the whole clause, as the honorable senator, as a lawyer, knows. It only governs that particular sub-section.

Senator ELLIOTT - Surely it covers the whole of the proposed new subsection 5?

Senator Pearce - No. It governs paragraph d.

Senator ELLIOTT - I do not see it.

Senator PRATTEN (NEW SOUTH WALES) - It seems to me that your interpretation is right, looking at it from a layman's point of -view.

Senator ELLIOTT - I am afraid it is right from a legal point of view also.

Under the -Minister's proposals, so far as I oan gather, if the general officer commanding likes to refuse to redress the soldier's wrong, that is the end of it in time of war. There is no such limitation in the Army Act; in fact, no general in the British Army would dare to interfere with an officer's right of appeal to the Army Council in time of war or in time of peace. It will be seen that under the Army Act a special complaints officer is told off to investigate soldiers' complaints. I remind the Committee that if officers and men find that there is no method provided for them to bring forward their complaints and have them adjusted, it constitutes the most dangerous incitement to mutiny. If they find that the only way to get redress is to attract public attention by banding together and raising a mutiny, they will undoubtedly take that course, and it is our duty, when dealing with the handling or administration of the affairs of large bodies of armed men, to provide a means by which grievances can be investigated, duly ventilated, and 'redressed. It is with that object in view that I shall move these amendments.

Senator Pearce - Do you say the soldier under the Army Act has the right to go up to the King?

Senator ELLIOTT - No, the officer has, but the soldier has not, and, being a democratic man, I do not" see why the soldier should not in a proper case have an appeal to Parliament.

Senator Pearce - A little while ago you said he had an appeal right to the King.

Senator ELLIOTT - I did not say so. I read the section of the Army Act, of which the language is very clear, and explained it by comments where I could.

Senator Pearce - When criticising part of my amendment, you said that under the Army Act they had the power, but that under my amendment they had not. They have not got. the power under section 43 of the Army Act.

Senator ELLIOTT - "With the distinction that the Minister points out between soldiers and officers, perhaps that is so. Inasmuch as we are prepared to give officers the right it would be wise to provide our soldiers with a means of having their grievances properly inquired into. In a letter to the press a few days ago I cited a case which should be fully investigated. A -man who was introduced to me by the honorable member for Hindmarsh (Mr. Makin) informed me that during his service as a warrant officer - he had an unimpeachable record - at Alexandria, in charge of the mess,, it was a part of his duty to secure provisions from a Greek firm of contractors. This warrant officer informed his commanding officer that the food was unsatisfactory, and requested that the contract .be cancelled. The Greek firm thereupon charged the man with attempted blackmail, and said he was endeavouring to obtain from them money by way of a secret commission, and that when they refused to be blackmailed, he sought to have the contract cancelled. A preliminary investigation was held by an officer allotted for that purpose. That officer is now in Melbourne, and although I have not seen him, I have been assured that he is prepared to give evidence to the effect that there was absolutely no evidence against the warrant officer. Notwithstanding that there was no further trial this man was returned to Australia as an undesirable.

Senator Cox - By whom?

Senator ELLIOTT - By the authorities in Egypt.

Senator Cox - There must be some one who was responsible for his return to Australia. Waa .ho tried by court martial ?

Senator ELLIOTT - Apparently the officer acted on the recommendation of the commanding officer, and I suggest that honorable senators who have had experience in Egypt and who know of some of the things that went on there should fully consider the position. I do not know who the commanding officer was - some may say he was a great and honorable man- - but I suggest that it is at least possible for the commanding officer to have been receiving a secret commission from the Greek firm supplying goods.

Senator PRATTEN (NEW SOUTH WALES) - That is as good a suggestion as the other.

Senator ELLIOTT - Quite. The services of the warrant officer were dispensed with. I am not in a position to conduct an inquiry; but what I have mentioned has been given to me as correct. When the warrant officer returned to Australia he- was given a bad discharge, and on endeavouring to resume his employment at a Government factory from which he enlisted was told that he could not be re-employed as his discharge was unsatisfactory, and that he would have to look elsewhere for employment.

The CHAIRMAN (Senator Bakhap - I must draw the honorable senator's attention to the fact that his period of fifteen minutes has expired.

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