Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Full Day's HansardDownload Full Day's Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Wednesday, 11 May 1921


Senator PEARCE (Western Australia) (Minister for Defence) . - The present Act prevents a court martial from passing a sentence of death, for an offence of murder. The' only sentence which, under the Army Act, a court martial can pass for an offence of murder is that of death, and, "therefore, during the present war, where the offence of murder was committed, the courts were faced with the fact that they could not legally inflict 'a sentence for a conviction of murder. In one case a man was found guilty of murder, but the court could not inflict a sentence, and it was not until eighteen months afterwards that a trial was completed, when the man was brought to Australia for the purpose. Even then he could only be charged with attempting to do grievous bodily harm. He was convicted by court martial - the civil Courts had no jurisdiction - and was sentenced, to four years' imprisonment. Nevertheless, the case was obviously one of murder. Towards the end of the war a regulation was passed modifying the . provisions of the Army Act relating to the sentences, so that penal servitude was inflicted; but this was a temporary - measure pending resubmission to Parliament of the question of penalty. The penalty for such an offence is very much more appropriately dealt with by Act of Parliament than by regulation. The retention of the provision for confirmation by the Governor-General of sentences of death imposed outside the Commonwealth," ' in my judgment, would not be in the best interests of the prisoner himself. I ask honorable senators to consider the state of mind of a prisoner who in the last war may have been convicted of murder,' and sentenced to death. He would have to wait whilst all the papers and reports connected with his case were sent to Australia for consideration by the Government, who would then advise the Governor-General, and the GovernorGeneral would come to a decision. I venture to say that such a strain imposed upon a man would be worse than death itself. As to the advisability of having the death penalty imposed for murder there can be no question. In every State of the Commonwealth, Parliaments, which are free institutions and responsive to public opinion, have not yet, so far as I know, nullified the death sentence for wilful murder. Therefore, we must assume that public opinion in the Commonwealth declares that the punishment for murder shall be death.

Let us consider the position of citizens of the Commonwealth in the late war. Men came forward voluntarily, and offered their services, and they were sent to fight on the other side of the world. Unfortunately, men do not change their natures. In every community a proportion of the population will, in certain circumstances, commit murder. There was a small percentage of that class in the Australian Imperial Force, and so murder was sometimes committed under revolting circumstances, in one case a man murdering his mate. There is little doubt that public opinion favours the punishment of murder with death. Therefore, I do not anticipate that the Committee will object to the death penalty for murder when our troops are serving outside Australia, and when the persons charged are tried by courts martial. If the murder is committed within the Commonwealth the prisoner will be tried by the civil Court, and not by a court martial, even if the murder be committed in a military camp. The only question, therefore, that I anticipate will be raised will be whether confirmation of a death sentence for murder shall be held over for the , GovernorGeneral in Australia, or whether it shall be left to some military reviewing authority, which will not be the authority that actually imposes the sentence.

Army sentences imposed by courts martial come up for review by the general officer commanding. "We may assume that, as in the case of the Governor-General, who would act on the advice of his Ministers, after a full review of all the documents, the general officer commanding, in reviewing a death sentence for murder, would have access to all the papers, and would make himself fully conversant with every aspect of the case. Moreover, he would have this advantage over the GovernorGeneral : Not only would he have access to all the papers, but he would also be able to bring, before him those persons who actually took part in the trial, who heard the witnesses give their evidence, who noted their demeanour and the demeanour of the prisoner, and would be able to give him the impressions which they had formed. The Governor-General would be in a different position. He would act on the recommendation of the Government, and would simply have access to the whole of the printed evidence taken at the trial, without being able to consult the persons who acted .as the prisoner's friend or the prosecutor. He would simply have the cold records of the trial before him, and upon these he would be called upon to make a decision. It seems to me that the cause of justice would best be served by intrusting the general officer commanding with this important responsibility of confirming or commuting a death sentence. . If, however, there is a general desire on the part of honorable senators that confirmation should be reserved for the Governor-General, I will not press my view to the exclusion of other views, because this is a very important and vital matter. There is, of course, the question as to the competency of a military or a civil authority to determine this issue. But, after all, this is largely a question of terms, because, although the GovernorGeneral may npt be in a military command, he is nominally CommanderinChief of our Forces.


Senator Benny - But he would only act on the advice of his Ministers.


Senator PEARCE - Yes. And that seems to be a good reason why we should retain the right of confirmation by the Governor-General. It brings in the authority of the civil power. The GovernorGeneral acts on the advice of his Ministers. But are they competent to advise in a matter like this? When this question came before me, I had no difficulty in making up my mind about the retention of the death penalty for murder,. but I confess I bad some doubt as to whether the confirmation should be by the Governor-General. It seems to me, however, that the balance of the argument is in favour of allowing the commanding officer to exercise this important responsiblity.







Suggest corrections