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Thursday, 12 May 1921


Senator BENNY (South Australia) . - I intend to support the amendment. Of course, recognise what the Government had in view in proposing the insertion of the proviso. But the fact that the word '"is" in the first portion of the proposed new section has been omitted doesnot affectthe situation at all. No doubttheyhad in mind the necessity forpreventing the invalidity of a convictionas the result of any informality in the issue of the warrant. For instance, the warrant may not be in the prescribed form, and hence the Defence Department wishes to rid itself of the onus which it ought to accept, because the liberty of the subject is a principle which isverydear to every one of us. If there be any flaw in the issue of thewarrant-


Senator Senior - That would rest with the Court, and not with the Defence Department.


Senator BENNY - But the Court may consist of honorary justices, and we cannot get at them. The Defence Department ought to accept responsibility in this matter. It has its own trained officers, and it is only right that it should accept responsibility for any technical objection which may be urged against the warrant under which a trainee has been convicted and detained.


Senator Foster - If the case were a civil one, could not the convicted person apply for a writ of habeas corpus?


Senator BENNY - Yes.


Senator Foster - Then the Defence authorities wish to override the common law.







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