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Thursday, 12 May 1921


Senator GARDINER (New South Wales) . - I have seen too much, particularly under the present Government, of illegal acts under military regulations, to pass a provision of this kind without a pronounced protest. The proviso reads -

Provided that the failure of the Court to issue a warrant in the prescribed form shall not affect the. liability of the person to undergo the detention or custody ordered.

This proviso is a violation of a very important principle.. No one should be detained except upon the authority of a warrant. I have seem the militaryauthorities. of Australia defy the Courts in New South Wales, Victoria, South Australia, and Western Australia by means of trickery. I can recall one case in which an action was pending in the Supreme Court of New South Wales, and only a day oftwo before it was to come on for hearing the military authorities hurried their prisoner to Victoria.. When action was about to be taken in Victoria they hurried him to Adelaide.


Senator Cox -Is the honorable senator referring to his friend Father Jerger ?


Senator GARDINER - Yes. In Adelaide the military authorities kept their prisoner on board ship, and in Western Australia they again evaded the law. I contend that law: and justice in this country are too sacred to be interfered with by trickery.


Senator Cox - That case has nothing whatever to do with military training..


Senator GARDINER - Neither has this clause.


Senator Cox - Father Jerger's case was one of disloyalty:


Senator GARDINER - He was judged withouta trial. In his case the Government went out of theirway to trick the Courts instead of saying in a manly way, "Here is our authority f or interfering with this man. If the law thinks that we are interfering with himillegally let it say so." If we take the view which has been expressed by Senator Cox that a man is to be adjudged guilty and punished without a trial, we shall only hasten the day when we shall have no law, but simply anarchy. Under the proposed new section a young man may be brought before a magistrate.


Senator Pearce - The clause says that where a person is convicted of an offence against sub-section 1 of sections 134a of the principal Act, and is ordered to be detained in a prescribed institution, the Court shall issue a warrant in the prescribed form.


Senator GARDINER - But it also says -

Provided that the failure of a Court to issue a warrant in the prescribed form shall not affect the liability of the person to undergo the detention or custody ordered.


Senator Benny - The honorable senator should read proposed new section 135ba.


Senator GARDINER - Very well. The clause reads : -

After section 135b ofthe principal Act the following section is inserted : - " 135ba. When a person is convicted of an offence against sub-section (1) of section 134a or sub-section (1) of section 134b or subsection (1) of section 135' of this Act is ordered to be detained in a prescribed institution or place, or into the custody of a prescribed authority, the Court by which the order is made shall issue a warrant in the prescribed form committing the person to a prescribed institution or place or into the custody of the prescribed authority, as the case may be:

Provided that the failure of the Court to issue a warrant in the prescribed form shall not affect the liability of the person to undergo the detention or custody ordered."

The reading of the entire clause has simply strengthened my argument, because, notwithstanding anything contained in it, the military authorities may say that the warrant of the magistrate is unnecessary. Knowing that a person must be legally detained without a warrant being signed, if the military authorities claim the right to detain a trainee in such circumstances, what may happen ? The person may be convicted.


Senator Pearce - He would have to be convicted.


Senator GARDINER - He may be convicted of not having fulfilled his obligations in regard to compulsory training, but the magistrate may say, "'Well, you have not complied with the military regulations, but, although you are guilty under the Act, I shall not issue a warrant for your detention."


Senator Pearce - If a trainee is convicted the magistrate must order him to be detained.


Senator GARDINER - We cannot legally hold a man except upon a properly signed warrant. But if it comes to a question of the illegal detention of any person, the military authorities will get out of the trouble by blaming the magistrate, and the magistrate in turn will blame the military authorities, so that the person who is really in the wrong will not be brought to book. It may be a short cut to detention for the military authorities to say "If a magistrate makes the mistake we should detain the offender." I have not any confidence in the Defence Department in its dealings with civil liberty. The very training of the military authorities prompts them to ride roughshod over civil liberty. All the safeguards of such liberty - the issue of the warrant before arrest, the signing of the warrant, and other matters, which are frequently regarded as mere forms - become very important when we are dealing with human life and freedom.







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