Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Full Day's HansardDownload Full Day's Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Thursday, 12 May 1921


Senator ELLIOTT (Victoria) .- I move -

That the following proposed new sections be added to the clause : - " 123i. ( 1 ) An officer of the Military Forces or a soldier, prior to making any complaint in pursuance of the last preceding section, shall a entitled to inspect any books, documents, or papers relating to the matter in respect of which he thinks he has been wronged, and may, in any complaint subsequently made by him, state whether or not he agrees with' the statements set out in any such book, document, or paper.

(2)   If the complainant denies or contradicts any such statement or alleges that any documents affecting his case have not been produced for his inspection, thenin the event of the complaint being forwarded to the Minister for submission to the Governor-General, the Minister shall, before submitting it to the Governor-General, direct an inquiry on oath to be held before a Justice of the High Court or a Judge of the Supreme Court of a State as to the truth of the denial, contradiction, or allegation, as the case may be, or as to any other matter relevant to the complaint.

(3)   The complainant may, if he so desires, be represented by counsel at the inquiry, and shall have full opportunity of making any statement and of giving any evidence he wishes to make or give, and of cross-examining any witness whose evidence or opinion affects his character or military reputation, and producing any witness in defence of his character or military reputation.

(4)   The finding of a Justice or a Judge on any matter referred to him in pursuance of sub-section (2) of this section shall be conclusive.

(5)   In time of war the Minister may, if he thinks proper, decline to proceed with the inquiry until the termination of hostilities, but in such case shall direct such facilities as are prescribed to be given to the complainant for the record of the evidence of any person concerned.

(6)   If any officer whose duty it is to investigate a complaint shall wilfully and knowingly disregard the provisions of this Act or any regulation for the redress of wrong, he shall, upon proof thereof, be deemed unfit to serve His Majesty in any capacity whatsoever, and his office shall be vacated accordingly." " 123j. ( 1 ) If any officer induce or persuade, by means of any promise, threat, representation, duress, or other means, any complainant not to proceed with any complaint or appeal which he may have made to that officer, or of which the officer has knowledge, then, in addition to the same disqualification as is imposed by the last preceding section, the officer shall be liable in any action for damages in the High Court of Australia or in the Supreme Court of any State at the suit of the complainant.

(2)   If any two or more officers are jointly or severally concerned in any such promise, threat, representation, duress, or other means, each of them shall be liable to the same extent as if he were solely responsible, and no account shall be taken of any sum or sums recovered or recoverable from any other person by the complainant.

(3)   The complainant shall be entitled to recover as special damages in any such action the difference in pay (if any) which the complainant would or might have received by reason of receiving any promotion or promotions, appointment or appointments to which he might reasonably claim by seniority to have been entitled had his appeal been successful, and also such general damages as the Judge or a jury shall consider him to be entitled to recover in respect of any loss or damage to character, reputation, or otherwise by reason of the action complained of.

(4)   If after judgment in his favour any complainant is unable to recover from any officer the amount of such judgment he shall be entitled to recover the same by action against the Commonwealth:

Provided, however, that if two or more officers are sued by him he shall not be entitled to receive from the Commonwealth any amount greater than the highest amount which is adjudged to him in any one of such actions.

(5)   The Commonwealth shall if the AttorneyGeneral thinks fit, be entitled to be heard in any action brought under this section.

(6)   During time of war any such action may be stayed on application to the Court until the termination of hostilities.

(7)   Any such action shall (except in time of war) be commenced within twelve months from the time the act complained of occurred:

Provided, however, that if by threat, duress, fraud, or misrepresentation the complainant is prevented or deterred from bringing the action, the time shall run from the cessation of the duress or his discovery of the fraud or misrepresentation.

(8)   In time of war tlie action may be brought at any time within twelve months of the issue of the proclamation that the war no longer exists if the officer to bc sued be then within the jurisdiction, and if he be not within the jurisdiction at that time then action may be brought within twelve months from the time at which the officer first comes within the jurisdiction after the issue of the proclamation.

(9)   If any member is without means he shall, on application to the Court, be entitled to sue in any such action in formapauperis and the Court shall make any necessary rules regulating the same.

(10)   The right of any officer or soldier to bring an action for damages in any Court of law shall not be limited by the fact that he has been injured solely in his military character or reputation by reason of the act complained of."

These amendments represent an attempt on my part to codify and perfect what I imagine to be the common law on the subject, and they set out clearly to the lay mind and the ordinary soldier exactly what his rights are. Proposed new section 123i provides, in sub-clause 1, that an officer or a soldier, before making any complaint, shall bc entitled to inspect any books, documents, or papers relating to the matter in respect of which, he thinks he has been wronged, and may state whether or not he agrees with any statement that may be set out in any such book, document, or paper. Sub-clause 2 of the proposed new section states that if the complainant denies: or contradicts any such statement, or alleges that the documents have not been produced for hi3 inspection, the Minister, before submitting his complaint to the Governor-General, shall direct an inquiry to be held before a Justice of the High Court or a Judge of the Supreme Court of the State. In sub-clause 3 there is provision, that the complainant may, if he so desires, be represented by counsel, and shall have an opportunity of giving evidence and of cross-examining any witness. This is a reasonable provision. Sub-clause 4 states that the finding of the Judge shall be- conclusive, and in subclause 5 there is provision that the Minister may, if he thinks proper, decline- to proceed with an inquiry until the close of the war. It was pointed out during the debate that a soldier, might institute inquiries merely to get away from the war. I presume the ordinary procedure would be for the Minister to direct an inquiry to be held on the spot, and for the preservation of the evidence, so that if any of the witnesses were killed subsequently their depositions could be referred to. In sub-clause 6 there is provision that if any officer whose duty it is to investigate a complaint shall wilfully and knowingly disregard the provision of the Act for the redress of wrong, he shall, upon proof thereof, be deemed unfitted to serve His Majesty in any capacity whatsoever. This may seem drastic punishment, but surely, if an officer wilfully neglects his duty in such an important particular, he ought to be put out of the Service. There would be no danger, then, of an officer attempting to neglect his obvious duty.

In proposed new section 123j there is right of action, against an. officer failing to redress wrongs. That is to say, if he induces or persuades, by means of any promise, threat, or representation, any complainant not to proceed with a complaint or appeal, he shall be liable in an action for damages in the High Court of Australia or the Supreme Court of the State. This is merely a codification of the common law. I am satisfied that at present an action for damages may lie against an officer who does this, and it is advisable that the law should be codified so that any soldier may ascertain his rights in this matter. Subclause 2 of this proposed new section refers to two or more officers who may be jointly concerned in any such promise or threat, and sub-clause 3 provides some measure of damage, for the wrong which a complainant may have suffered. If by the illegal action of his officer he h'als been deprived of promotion and if the Judge or jury consider him entitled to recover damages, this sub-clause supplies the necessary' machinery. Sub-clause 4 contains provision to the effect that if a complainant is unable to recover from an officer the amount of a judgment, he shall be entitled to recover it against the Commonwealth, but there is the proviso that he shall not recover from the Commonwealth any amount greater than the highest amount awarded to him in any one- of such actions; Suppose he proceeded against half-a-dozen officers,, and was awarded £1,000 against each, he could only recover from the Commonwealth £1,000, in the event of being unable to get anything out of the officers. Then, in order to prevent the Commonwealth being prejudiced by any combination or conspiracy for an officer to do a wrong to another, and then for the injured man to bring an action against him with the object, eventually, of claiming against the Commonwealth, there is provision for the Attorney-General to intervene and be heard. Any such action may be stayed, on application, until the termination of hostilities. In subclause 7 of this proposed new section there is a limitation provision to the effect that any action (except in time of war) must be commenced within twelve months from the time the act complained of occurred; but if the complainant is prevented by any threat or misrepresentation from bringing the action, the time shall run from the cessation of such threat or misrepresentation. Sub-clause 8 states that in time of war, an action may be brought at any time within twelve months of the issue of the proclamation that the war no longer exists, if the officer to be sued is then within jurisdiction, and if not, then it may be brought within twelve months' from the time at which he first comes within the jurisdiction, and after the issue of the proclamation. These provisions are inserted so that there may be no unnecessary delay in bringing an action. It might so happen that a man is hard up, and so in sub-clause 9 it is provided, in strict accordance with civil process now, that a man may sue in forma pauperis: that is -to say, if he is not worth £25, which is the usual amount, he may get a solicitor assigned to him by the Judge. Subclause 10 states that the right of any officer or soldier to bring an action for damages shall not be limited by the fact that he has been injured solely in his military character or reputation by reason of the act complained of. These provisions extend the common law right, as far as I can make out, to a number of cases. If a man suffers wrong to his person or property, that is to say, if he has been sentenced by court martial to imprisonment for fifteen years, when he ought to have been sentenced only to two years, every member- of the court martial is liable to heavy damages. Likewise, if the court martial illegally sentences a man to be flogged, by the common law every member of' the court martial participating in the illegal sentence is guilty of an offence and liable for damages; but where such sentence by. court martial means his reduction in. rank-, or* dismissal from office, the Courts have held that he has no right to damages. There is a distinction between wrong to property or person and wrong to a man's military reputation. A man having submitted himself voluntarily to military discipline, ought not to complain of anything done to him in his military capacity. I submit that that principle ought not to apply to Australia, where every person is compelled to serve, and anything that affects his military reputation is bound to re-act on him in his civil capacity. There is no reason, in these circumstances, for such a distinction. It is useless to give the valuable rights conferred by the clause just passed unless we surround them with some sort of legal sanction which- will keep officers administering the Act " on the rails." With the exception of the last. I believe that the provisions I propose represent a codification of the common law as it now exists.


Senator PEARCE - No they do not.


Senator ELLIOTT - I think so, and I have studied the law.


Senator PEARCE - I am surprised that the honorable senator should make such a statement. I shall reply to it when I deal with his amendment.


Senator ELLIOTT - My proposal is put forward for the protection of the soldier, and I commend it to the acceptance of the Committee.







Suggest corrections