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Wednesday, 11 May 1921

Senator DRAKE-BROCKMAN (Western Australia.) . - I hope that Senator Foster's amendment will be defeated. Senator Gardiner, speaking to the clause earlier in the debate, while arguing in favour of the omission of paragraph b, put up a strong case in favour of ils retention. The arguments used by Senator Duncan were also strongly in favour of its retention. I am as desirous of protecting the interests of men who may commit offences by seeing that they get exact justice as are Senators Gardiner and Duncan. Those honorable senators, if they are successful in securing the omission of paragraph b, will fail in their desire to secure the most satisfactory terms for accused men.. ' Senator Gardiner has pointed out that the atmosphere of active service is very different from that of civil Courts, and from that of a Cabinet room, in which Ministers may be sitting round a table merely considering papers. He pointed out very truly that many things are done on active service which must appear shocking to men who know nothing of the atmosphere of active service. That impresses me as a very strong argument in favour of the final decision coming from the soldier rather than from the Governor-General, which means the Cabinet, who know nothing about soldiering, or the conditions of soldiering. All these cold purely legal precautions are taken in the Army. 1 have already said in this chamber that in my opinion the fairest form of trial yet invented is the court martial. I stand by that statement.

Senator Elliott - Others may hold a different opinion.

Senator DRAKE-BROCKMAN - I am expressing my own opinion, and I have had quite a considerable experience of courts martial as convening officer, confirming officer, presiding officer, defend- ing officer, prisoner's friend, and in every other capacity.

Senator Fairbairn - And the honorable senator has had experience of civil Courts also.

Senator DRAKE-BROCKMAN - I have had experience of civil Courts in several capacities. It is with my experience of the Courts that I have given the Committee my considered opinion of the court martial. There were in the Australian Imperial Force, on active service, and would be again under similar conditions, gentlemen who held military rank, but who, in the ordinary sense, were not soldiers, but lawyers. Those men analyzed evidence purely as lawyers in connexion with all trials before courts mar.tial. We therefore got the calm judicial consideration of men highly expert in military law and the principles of evidence, and their, conclusions went tp the confirming officers before they gave their decision.

Senator Elliott - Was not that at a very late stage. of the war?

Senator DRAKE-BROCKMAN - The practice existed throughout the war, though it did not at first reach the state of perfection that it reached in the later stages of the war.

Senator Foster - Did the honorable senator ever know the judge advocategeneral by name?

Senator DRAKE-BROCKMAN - Yes. Analyzing the matter, the position was that there was a lawyer on the Brigade Head-quarters Staff, another on the Divisional Head-quarters Staff, another on the Corps Head-quarters Staff ; there was a whole staff of them at ArmyHeadquarters, there were more at General Headquarters, and finally, in. London, there was the Judge-Advocate-General, who had a large staff of trained lawyers at his disposal to assist him in reviewing all the cases which came from the armies operating everywhere. That was the system operating, and honorable senators will see that it provided for the protection of each case being considered from the calm and purely legal point of view. What further advantage would be given to an accused man if he were sent back to Australia with all the documents in his case, and he had here to go through the same performance of a mere examination of papers, because that is all it would amount to ? . But if . the final say is with the general officer commanding, advised as to the strictly legal point of view, he can take 'that "into consideration, and, in giving his decision, has the discretion to exercise mercy and consider extenuating circumstances, according to his own knowledge of the circumstances and the atmosphere in which the crimes were committed. I have no hesitation in saying that if I were in the position of the accused man I would prefer to be dealt with by a man who knew the atmosphere in which I lived, and in which the crime had been committed, rather than by a man living" 10,000 miles away from the scene of tha crime.

Senator Benny - Still, if the honorable senator were sentenced to death, he would like to have an appeal to tha Governor-General in Council.

Senator DRAKE-BROCKMAN - If I were sentenced to death, I would prefer an appeal to the' Commander-in-Chief in the field. The man who understands the atmosphere, and understands the soldier and the conditions under which he lives has a reasonable opportunity of knowing the conditions under which a crime wau committed. I hope, therefore, that Senator Foster's amendment will not be carried, and that, in the interests of the men as well as of the Army, the clause will be allowed to stand as the Government have presented it to the Senate.

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