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Wednesday, 11 May 1921

Senator DUNCAN (New South Wales) . - I agree with the opinion expressed by the Minister for Defence (Senator Pearce) as to including murder as one of the crimes punishable by death, but I differ from him as to the necessity for including the words " within the limits of the Commonwealth " in the clause now before the Committee. I can see no reason whatever for this limitation of our civil rights, because a member of our Citizen Forces remains a citizen of the Commonwealth, whether he be within the limits of the Commonwealth or in some other part of the world.

Senator Foster - If he is on Commonwealth service.

Senator DUNCAN - Yes. And as a citizen of the Commonwealth he is entitled to all his rights and privileges. It is proposed in the clause now under consideration to provide that if a member of the Military Forces of the Commonwealth be sentenced to death for any crime within the Commonwealth, his case shall be reviewed by the highest authority in the land, namely, the representative of the King himself. As the Minister has already pointed out, confirmation of a sentence by the Governor-General means confirmation by the Executive Council, which is composed almost entirely of persons elected by the people themselves; and so the citizenship rights of an accused person in regard to his sentence will be reviewed by an authority which he himself has helped to create. But if we are going to give to a military authority in some other country, perhaps adjacent to> Australia, the right not only to condemn a man to death, but also to carry out the penalty without reference to the civil authorities of this country, that would be going considerably further than I am prepared to. follow the Government. The Minister for Defence has suggested that it would be an awful ordeal for a man, under sentence of death in the field, to wait until his sentence had been confirmed by the Executive. Council in Australia, but we need not concern ourselves very much with the state of mind of a man guilty of murder pending the execution of the sentence. Even if he were sentenced to death in Australia, some time would elapse before the sentence was carried out. We need not concern ourselves so much with a man who has been proved 'guilty, as with the position of a man who may be innocent. In his case the extra time allowed by the requiring of confirmation of the sentence by the Governor-General might make all the difference in the world as to whether the facts of the case shall be disclosed or not. Many a man has been sentenced to death, and the sentence carried out, on circumstantial evidence. Something of the kind may occur in connexion with sentences imposed by courts martial.

Senator Drake-Brockman - That mostly happens in novels.

Senator DUNCAN -No, it does not. There is an old saying that the " law is a hass," and very often, even in this enlightened community, the truth of that saying has been demonstrated . I am not saying anything at all against the fairness of a court' martial. I know it is absolutely fair. But courts martial will sit in a time of great urgency, and when the officers composing it have countless other duties to perform. In such cases it is likely that a trial would be hurried through. The Minister has said that these sentences would go for review before the commanding officer. The commanding officer is not so much concerned with the life of one individual who has been sentenced to death by court martial as he is with many major issues which, at such a time, are engaging his attention. To come to him' and to ask his approval of the execution of the death sentence is, in such circumstances, veTy much like asking him to affix a rubber stamp to a document. He will certainly accept the advice of the officers who constituted the court martial.

Senator Cox - No; the honorable senator is wrong there. The case goes first to the general officer, who may be a major-general or a lieutenant-general. He goes thoroughly into it before it is passed on to the commanding officer of the Forces. The general officer is the judgeadvocategeneral.

Senator DUNCAN - All the probabilities are against the general officer commanding giving any long consideration to the case. But if the, statement of my honorable friend be correct, it removes another argument which has been advanced by the Minister, who has pointed out that it is impossible for the GovernorGeneral or the Executive Council to see the witnesses who were examined in any case, to notice the demeanour of the prisoner, or to know anything but the bare' facts as they have been recorded in evidence. But the decision of the court martial, it seems, must be further reinforced by the decision of the judgeadvocategeneral. I submit that, after the case has gone through the court martial which has delivered sentence, and after that sentence has been confirmed by the general officer commanding, there is nothing' whatever to be lost, and a great deal to be gained, by deferring the carrying out of the sentence for a couple of months, in order that the Executive Council may be enabled to carefully safeguard the rights, privileges, and lives of our citizens. For that reason, I intend to move -

That the words "and (b) by inserting therein after the words 'court martial' (second occurring) the words ' within the limits of the Commonwealth ' " be left out.

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