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Thursday, 12 May 1921


Senator FOSTER (Tasmania) .- The amendment moved by Senator Elliott places members of the Committee in a somewhat peculiar position. The amend.ments of which the honorable senator has given notice are numerous, and embrace so many more details on the lines of the proposal submitted by the Minister for Defence (Senator Pearce), that one is somewhat fearful that in deleting a portion of the Minister's amendment, one may interfere with its passage. I do not know whether Senator Elliott's amendment is in order, but he has not put the case sufficiently clearly to demonstrate why - with the exception of one point, that the soldier and officer should have equal finality of appeal- we should go any farther than the Minister's proposal. In my opinion, the proposed new section provides something which has not been in existence even by regulation.


Senator Elliott - It relates to officers.


Senator FOSTER - From my point of view, it relates to soldiers.


Senator Elliott - The sub-clause I have moved to omit does not relate to soldiers.


Senator Pearce - The soldier already hae four Courts of appeal.


Senator FOSTER - I am dealing with the Minister's proposal under which the soldier, can appeal to his captain, colonel, brigadier, general officer commanding, and eventually to the Military Board.


Senator PRATTEN (NEW SOUTH WALES) - Except in time of war.


Senator Pearce - The General Officer Commanding takes the place of the Military Board in time of war. Senator FOSTER. - If our men were fighting abroad, they should be able to appeal from the General Officer Commanding, or if in Australia, to the Military Board. Some of the officers with whom I came in contact when in the ranks were a pretty " crook " lot, but I think the Minister's provision is sufficiently wide, as there are various channels through which a man can appeal. The complaint made by Senator Elliott was, I believe, that the officers in appealing to the Military Board were really appealing from Caesar to Caesar, and that we do not go beyond that in this amendment. . Senator Elliott informs us that to get beyond the Military Board to the Governor-General political influence is necessary. An appeal to the Governor-General really . means to the Minister in charge.


Senator Elliott - It means an appeal to Cabinet.


Senator FOSTER - Cabinet usually adopts the recommendation of the Minister controlling the Department.


Senator Pearce - It really means the Minister concerned.

SenatorFOSTER. - Yes, and the Minister must be guided to some extent by the recommendations of the Military Board. He might consider it his duty to give consideration to a complaint in the case of a man who held the rank of the honorable senator in the Australian Imperial Force. But the position as stated by Senator Elliott the other day was, I think, altogether different. I thought his idea was to ignore the Military Board altogether.


Senator Elliott - I said that you must go up through the Board.


Senator FOSTER - I take it that the honorable senator means through the proper channels. It is rather difficult to understand just where Senator Elliott's series of amendments will take us. At present we must confine our attention to the point at issue. I fail to see what more the honorable senator could hope to accomplish than the Minister expects to achieve. The soldier, with four different courts of appeal available to him, is in rather a different position from an officer holding Senator Elliott's rank. In his case there would be appeal from the General Officer Commanding to the Military Board and the Governor-General. With my knowledge of the men in the ranks, I am afraid that many men will be inclined to cause any amount of trouble on all sorts of decisions if they have an opportunity of appealing to different authorities right up to the GovernorGeneral.


Senator Pearce - Did you have any " bush lawyers" in the ranks ?


Senator FOSTER - Yes. The men thought I was something of a "bush lawyer" myself.


Senator Elliott - The honorable senator will see that I have made provision that consideration of frivolous complaints may be postponed until the end of the war.


Senator FOSTER - I think you would get a lot of frivolous complaints, for, while I have every sympathy for the man with a genuine complaint, the man who has everyreason to expect that his wrongs will be righted, still I feel sure that a great many frivolous complaints, not worth while bringing back to Australia for the consideration of the Governor-

General and the Minister for Defence, will be raised. I would also like to point out that, even under this amendment, it would be necessary to frame regulations setting out the complaints in respect of which no appeal would lie, and in respect of which there should be no suspension of sentence. Otherwise you are going to land the Defence Department in a lot of trouble. The authorities will not know where they are. For. instance, it would be a simple matter for a man sentenced to detention to say, "I am appealing against the sentence, and until my appeal is dealt with by the Governor-General I maintain that you must not keep me in quod.' " It would appear, therefore, that regulations should be framed providing that no appeals should be allowed for the purpose of evading punishment lawfully awarded by the Court.







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