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Wednesday, 11 May 1921


Senator EARLE (Tasmania) .- Earlier in the evening the Minister intimated that he would convince me that no case in which the death penalty may be inflicted can be tried in time of peace.


Senator Pearce - The Defence Act gives nobody any power to inflict that penalty.


Senator EARLE - The memorandum which has been circulated with the Bill sets out the clause in the form in which it is proposed to amend. It will read -

No member of the Defence Force shall be sentenced to death by any court martial except for murder . . . within the limits of the Commonwealth, and it shall not be carried into ^effect until confirmed by the Governor-General.

If there be no section in our Defence Act which provides that no court martial shall sentence a soldier to death in time of peace, the clause which we are now discussing must empower such a tribunal to sentence a soldier to death at any time upon any of the charges which are enumerated therein.


Senator Pearce - We applied the British Army Act in war time. These are prohibitions upon the British Army Act.


Senator EARLE - Is, there any objection to an amendment to strike out the word " except," with a view to insert the words " unless Australia is in a state of war, and then only." The clause would then read : -

No member of the Defence Force shall be sentenced to death by any court martial unless Australia is in a state of war, and then only for murder, treacherous mutiny, &c.


Senator Elliott - We have already passed a clause which provides that no court martial may inflict a heavier punishment than three months' imprisonment in time of peace.


Senator Pearce - No court martial can try any person for the offences enumerated in this clause in. time of peace.


Senator EARLE - I accept the assurance of the Minister. ' But the clause appears to empower a court martial to inflict this penalty either in time of war or in time of peace.


Senator DRAKE-BROCKMAN (WESTERN AUSTRALIA) -brockman.- A . man cannot desert to the enemy in time of peace.


Senator EARLE - Quite so. But murder and mutiny may be committed in time of peace. And so far as I can read the clause before the .Committee, a court martial is given power, subject to the concurrence of the Governor-General,' to impose the death sentence for the offences referred to in the clause. I thought the Minister for Defence would refer me to some section of the Defence Act which explicitly provides that courts martial may not try offenders accused of an offence punishable by death while Australia is in a state of peace. In war time it is necessary very often that drastic action should be taken to punish offenders, and to deter others from the commission of like offences. Senator Gardiner said that liability to the death penalty would impose no restraint upon soldiers, but I am disposed to believe that the fact that they would be sentenced to a shameful death would have a deterring effect upon them. If the Minister can assure me that an offender under this clause must in times of peace be handed over to the civil Courts to be dealt with I shall take no further action, but if I do not get that assurance I shall submit the amendment ! have indicated.







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