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Wednesday, 11 May 1921

The CHAIRMAN -AH I tell the honorable senator is that he must discuss a matter which is relevant to the clause.

Senator GARDINER - When it is remembered that I have only fifteen minutes to speak upon this question, what does it matter if in one sentence I go half a yard over the mark? . I do hope that the Chairman will realize that I am" not attempting to be offensive to him. But I have made it a practice to resist any attempt to interfere with my liberties here. I will not tolerate interference with them without protest. I claim my right to speak in the way that I think best on behalf of the people whom I represent.

The CHAIRMAN - My ruling is based upon my interpretation of our Standing Orders, and must be obeyed.

Senator GARDINER - Your ruling may go to the extreme, and you may have me ejected from the Chamber, but you cannot prevent me from speaking while I am here. I shall assert my right to do so whenever I am challenged.

The CHAIRMAN - I would remind the honorable senator that clause 44 is under discussion.

Senator GARDINER - I was arguing that military officers who form a court martial are not the peers of the person whom ' they try. They constitute a superior class.

Senator Drake-Brockman - Rubbish !

Senator GARDINER - The ancient law of Britain gives to its people the right of trial by their peers. Accused persons do not get that under trial by court martial.. Coming back to the question of the punishment of murder by hanging or shooting, I can recall a case which occurred during the South African War. I recollect that a poet named Morant was shot during that campaign.

Senator Elliott - I propose to refer to the Morant case.

Senator GARDINER - Then I need not refer to it. But his case and Hancock's case left an unfortunate impression in my mind that if they had been allowed to come back here, and their cases had been finally dealt with in this calmer atmosphere, a couple of Australian officers would not have been sacrificed. There should, in my opinion, be an appeal from ai court martial to the Executive Council. _ If at Port Darwin a person under the civil law were sentenced to death it would be the Executive

Council sitting here that would finally confirm the death sentence. There would be no hurry, and there is no occasion for hurry. I can recall a case in Sydney in which a man was almost on the eve of being executed when petitions were sent to the Executive Council with additional facts showing that the evidence on which the man was about to be executed was absolutely unreliable, and at the last moment he was snatched from the gallows.

We have to consider, that the atmosphere of the military in active service is altogether different from the atmosphere of civil life. The code of the military on' active service is altogether different from the code in civil life. In the military atmosphere men have to do what is necessary to be done, even though it involves the destruction of life and property. I do not wish it to be thought that I desire to draw any distinction between the morality of the soldier and that of the civilian. I have a great deal of sympathy for men who, under the conditions of active service and the mental strain of war, do things which, under other conditions, they would not dream of doing. I venture to say that there have been occasions, I will not say during the last war, when on active service soldiers suf-. fering from reprisals by the enemy have taken the law into their own hands and committed murder. One can scarcely call it murder, because in their roughandready way they have constituted themselves a court of justice, and have dealt it out to the people who offended against them. Those men could be sentenced to death by a martinet like General Elliott, not as a senator but as an officer responsible for the discipline of his command. He would allow no one to interfere with the discipline of his command. A man, or a body of men in the heat of excitement or suffering from injuries which they would regard as justifying the extreme course of taking the law into their own hands and taking life, might do so. They could be brought before a court martial for disobedience of regulations which forbade them to carry arms under certain conditions or to go outside their lines. They might have gone to a neighbouring village and destroyed it, and might have taken life because a comrade had been murdered there the night before or for some such reason. Before, a court martial it is possible that those men would be confronted with a very serious charge, which would reflect discredit upon the officers in charge of them if it became public. Their officers would try the charge, and would be judges to a certain extent of their own case since it would be important to them that they should vindicate their reputation by a sentence of death on the offenders. I could not defend the offenders, but I suggest that the atmosphere of their trial is a military atmosphere, and their jury officers with a sense of the dignity of their position and the proper dscipline of the Forces in their command. They would be dealing with such men with biased minds. I do not say that officers are not very often placed in very trying positions by men who take the law into their own hands. I do not go about with my eyes closed or my ears shut. I do not in this chamber or anywhere else voice the horrors of war as I have frequently heard them repeated.

The CHAIRMAN (Senator Bakhap - I draw the honorable senator's attention to the fact that his time has expired.

Sitting suspended from 6.28to 8. 7 p.m.

Senator GARDINER - During the suspension of the sitting an amendment has been prepared for me dealing with the question of the death penalty. Senator Pearce has pointed out to me that the amendment does not actually provide for all I want. It merely wipes out the death penalty for murder. I am reasonably accurate in estimating the opinions of honorable senators, and so I propose' to move the amendment in the form in which it has been given to me. Then if I have sufficient support to carry it I shall ask for the postponement of the clause until the amendment is put in proper order. I move -

That all the words after the word " amended " be left out with a view to inserting in lieu thereof the following words: - "by omitting all the words after the word court-martial' first occurring."

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