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Wednesday, 11 May 1921

Senator PEARCE - The order, then goes on to give other directions for the battle.

Senator Gardiner - It was a very fine order.

Senator PEARCE - It may have been, but it shows that General Elliott was not then prepared to give even a trial. He was prepared to shoot first and give a trial afterwards.

Senator Elliott - Quite so, and I will explain why. That has no analogy with this case.

Senator PEARCE - It may have been absolutely essential for General Elliott to give that order, but it is extraordinary that the same senator should now advocate in this chamber that there should be a trial, which he was notprepared to give in that case, and advocate also that even after the trial the sentence should be suspended until somebody at the other end of the earth could review the whole of the circumstances. I could understand a civilian who knew nothing of war conditions advancing that view, but it certainly comes with a very bad grace from an officer who issued an order such as I have quoted. The men to whom his order applied were deserters - they were not deserters to the enemy, and they were not punishable by death under the Australian law; they were only deserting to the rear. Yet General Elliott, in his capacity as an officer with the Australian Imperial Force, issued an order that they -should be shot if they did not rally.

Senator Foster - You must have been pretty badly rattled last week to have had that raked up.

Senator PEARCE - Senator Elliott is so fond of reminiscences that I thought I would give him a dose of his own medicine.

Senator Gardiner - I think it redounds to his credit.

Senator PEARCE - It may, in the minds of some people, but I cannot see how it can do so with those who are now urging not only that these men should have a trial, but that even after the trial the sentence should not be carried out overseas, and that they should be brought back to Australia. Senator Elliott even suggested that they should have the right of appeal to a Court of criminal jurisdiction. He gave those men no right of appeal.

We have the records of the reviews of all the death sentences. They all had to be reviewed by the General Officer Commanding in Chief, who was advised by the Judge Advocate-General. The reports of all the cases in which the death sentence was passed in the Army during the late war show that in89 per cent, of them the sentence was commuted by the General Officer Commanding,, the military officer who " cannot be trusted to do justice." It may be argued that the fact that he commuted 89 per cent, of the death sentences passed by courts martial showed that the courts martial were too extreme in their penalties,, but

I do not think that is a fair inference. The inference is that the General Officer Commanding extended clemency in 8!) per cent, of the cases where a finding of guilty had been recorded and sentence of death had been passed. That is ' a greater percentage of' instances of clemency than will be found in similar appeals under the civil law of our State.

Senator PRATTEN (NEW SOUTH WALES) - In the remaining 11 per cent, was the death sentence carried out?

Senator PEARCE - It must have been.

Senator PRATTEN (NEW SOUTH WALES) - Did you not tell me a little while ago that no Australian soldier was shot?

Senator PEARCE - These are the cases of the whole British Army, -and not of Australian soldiers only. It can be seen that where the review take's place - and it is a review, and not an appeal -clemency is, exercised in the greatmajority of cases, I feel that we can quite safely leave the review- to the General Officer Commanding. The provision in the- Army Act> at page 435, relating to discipline and. courts martial, reads as follows: -

Provided that sentence of death or penal servitude awarded by field general court martial shall not be carried into effect unless or until- it has been confirmed by the general or field officer commanding the force with which the person under sentence is present at the date of his sentence.

Therefore, every one of those cases must he reviewed, and the sentence can he confirmed only by that officer.

Senator Drake-Brockman - And it must be. passed by a unanimous court to begin with.

Senator PEARCE - Yes. We propose in connexion with our Citizen Forces to establish a legal corps, which will consist of legal gentlemen who are associated with "the. Citizen Forces,, and who will receive a training in court, martial procedure.

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