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Wednesday, 11 May 1921

Senator ELLIOTT (Victoria) .- I think Senator Pratten has misunderstood my amendment.

The CHAIRMAN (Senator Bakhap - The honorable senator must not discuss his own proposed amendment at this stage.

Senator ELLIOTT - I do not intend to do so. I merely mentioned that Senator Pratten said he was in sympathy with my amendment; then he proceeded to misconstrue it. Section 98 of the Defence Act provides that the death sentence shall not be enforced except for the crime of mutiny, ' .desertion to the enemy, or traitorously delivering up to the enemy any garrison, fortress, post, guard, ship, vessel or boat, or traitorous correspondence with the enemy, and that no sentence of death passed by a court martial shall be carried into effect until confirmed by the Governor-General. That should remain as it is. The crime of murder and the words " within the limits of the Commonwealth" should be eliminated from the clause. Further than that, I am not prepared to go to words assisting Senator Gardiner. The very serious offence of mutiny, in which large bodies of armed men may break loose, must be drastically dealt with. Similarly, desertion to the enemy is a very serious offence. I do not know of any case in which, our own men deserted to the enemy, but a New Zealander deserted and took over valuable information. I am in favour of the death penalty being imposed for all such extreme cases; but I protest against any attempt to give away control over the lives of our citizens by the insertion of the words " within the limits of the Commonwealth," which means that the Government will have no control over death, sentences that may be imposed under this clause. I do not know whether honorable, senators remember a case that occurred during the Boer war. An irregular corps, commanded by a British ex-regular officer with whom three Australian officers, one of whom I knew very well, were serving, was operating in the Northern Transvaal. One of the Australians was a young man named Whitton, who enlisted with me, and was my Q.M.S. for some time. The other two Australians were

Morant and Hancock, the f ormer a South. Australian, and the latter from New South Wales. They rendered pretty distinguished service up to the time the incident to which I am aboutto refer happened. They made an attack on the Boers and were driven back. Captain Hunt, one of their officers, fell wounded. Subsequently, when reinforced, they renewed the attack, and regained their original position, only to find the 'dead body of Captain Hunt, with every evidence that he had been brutally kicked to death by the Boers, and his uniform stripped from him. They captured a certain number of Boers, includinga man who was wearing Captain -Hunt's uniform. Naturally they were exasperated and they held an irregular court martial.No one of course,can constitutea court -martial without the authority of the Commanderin Chief; but these Australians, under the guidance of a British, officer, constituted a court martial, sentenced the Boer prisoners to death, and shot them. Of course, the court martial being irregularly constituted, they became guilty of murder, and would be punished under this clause. It happened that one of the men killed was a German subject, with the result that representations, which could not very well be disregarded, were made to the British Government for the punishment of the crime.

SenatorRowell.- It was the Dutch people who took action. I believe they killed a Dutch clergyman.

Senator ELLIOTT - At all events, these Australians acted largely under the direction of the British officer, and constituted an irregular court martial.

Senator PRATTEN (NEW SOUTH WALES) - Under the Army Act?

Senator ELLIOTT -No because they had no authority to do that Whitton was only a boy of nineteen at the time, and he says he believed he had authority to act as the British officer had told Mm. They were brought to trial, and it is said that an opportunity was given to the British officer to escape, because his cell door was left open. At all events he disappeared. The Australian officers were sentenced to death, Morant and Hancock were shot, and Whitton was sentenced to imprisonment for life, but upon appeal to the Privy Council his sentence was reduced to three years. Eventually he was pardoned, because be had acted under the direction of a superior officer. That; at all events, is the story as it 'is told in a book - The Scapegoat'softhe Empire, which he has written.

Senator E D MILLEN (NEW SOUTH WALES) - Have you read the official history of that case?

Senator ELLIOTT - No.

Senator E D MILLEN (NEW SOUTH WALES) - Then I suggest that you do so before you pass judgment on it.

Senator ELLIOTT - This book was published by Whitton after his return to thiscountry, and I understand the' preface was written to it by the then Prime Minister, the late Mr. Deakin, who movedHeaven and earth to get the sentences remitted. Lord Kitchener deemed it 'absolutelynecessary, for the sake of peace in -Europe, that thesemen should not be allowed to escape. Whitton claims that they were made scapegoats for the British Army. We do not want anything like that to happen again.

Senator Drake-Brockman - They were not in the Australian Army at the time.

Senator ELLIOTT - I believenot but if this provision is inserted it will give the British Army authorities too much power over our men. For this reason I desire the elimination of the words that it is proposed to insert in the original section. I realize that murder should be adequately punished, but there are degrees of murder, and we should not subject our men to the rough and ready law of justice by court martial.

Senator Cox - But is not the judge Advocate-General a qualified man?

Senator ELLIOTT - I am not saying anything about the Judge AdvocateGeneral at all. We arenot discussing any particular appointment. Some may be brilliant examples of legal learning, as great as our own Chief Justice, but others may be bad lawyers possessing all the Other faults of a bad officer who are appointed Judge Advocates General. I see no objection to men, who are tried by court martial for murder, which is a civil and not a military offence, having their sentences reviewed here upon appeal to our civil Courts. All the evidence adduced could then be recorded, and any case could be dealt with just as criminal cases are dealt with upon appeal.

Senator THOMAS (NEW SOUTH WALES) - just as Judge Ewing dealt with certain matters.

Senator ELLIOTT - Let us hope that we shall have in power Na Government which will appoint sound lawyers to such Commissions in the future. The proviso which I desire to insert stipulates that these murder cases shall go to a Court of Criminal Appeal-

The CHAIRMAN (Senator Bakhap - Order! The honorable senator must not prematurely discuss the proviso which he intends to move. The amendment of Senator Gardiner is now before the Committee.

Senator ELLIOTT - I desire to emphasize the necessity which exists for maintaining the right of appeal in the military offences mentioned to the Governor-General. Senator Millen was a little bit peevish with me the other night for obstructing the passage of this Bill.

Senator E D MILLEN (NEW SOUTH WALES) - Which Senator Millen does the honorable senator mean ?

Senator ELLIOTT - Senator E. D. Millen. He said that we soldiers who had complaints - just complaints as we believed, were insisting that we be heard - were a lot of disgruntled malcontents, and that we should all be strung up.

Senator E D MILLEN (NEW SOUTH WALES) - Is that all that I said ? I shall begin to think that, still more.

Senator ELLIOTT - The Minister thought that we should all be strung up, just as Senator Cox would shoot these unfortunate men rather than that they should "be granted a right of appeal.

Senator Cox - I did not say that. Put the right construction upon what I say.

Senator- ELLIOTT.- The honorable senator said that if a right of appeal were granted we should have to round up all the witnesses, so that the whole thing would be impossible.

Senator Cox - I say that a man gets a fair trial upon the field. If he committed murder, I would shoot him.

Senator ELLIOTT - Suppose that the High Court decides that he did not commit murder?

Senator Cox - If the honorable senator wishes to send back half the Army with the offender to Australia in order that the High Court may try him, let him do so.

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