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Thursday, 12 May 1921


Senator PEARCE (Western Australia) (Minister for Defence) . - I can only say that if the honorable senator's amendments were included in the Defence Act there would be very little prospect in future of getting any of our citizens to undertake the onerous duties of officers of the Citizen Forces. I ask honorable senators to read the provisions which Senator Eliott has submitted, and say whether they would be fools enough to put themselves in such a position- that they might be prosecuted and mulct in damages as the honorable senator proposes. There is a fundamental, objection which I wish to take to the amendments. They propose, in the first place, to mix up military and civil law. A Committee was appointed in the United Kingdom' after the close of the war. It consisted of a number of legal men and included a number of members of the House of Com-: mons, amongst them being Mr. Horatio Bottomley and Lord Hugh- Cecil, two men of very independent minds. After going through the question of military law and civil rights they made, amongst others, the following recommendation in July, 1919:-

We are of opinion that it is undesirable to set up any formal Court of appeal from decisions of courts martial, since those Courts sit and adjudicate in circumstances wholly different from those in which civil Courts exercise their power.

It is not to he thought that courts martial can do anything they please, irrespective of their obligations under the civil law, and irrespective of any fear of the consequences of their action if they exceed their authority. The common law operates here as it does throughout the Empire, and in this connexion I quote the following paragraphs from page 120 of the Manual of Military Law: -

1.   The members of courts martial and officers in the exercise of individual authority are, like the inferior civil Courts and magistrates, amenable to the superior civil Courts for injury caused to any person by acts done, either without jurisdiction, or in excess of jurisdiction; although there is not, in the ordinary sense of the word, any appeal from the decision of a court martial or from the order of an officer. Such injuries will equally be inquired into whether they affect the person, property, or character of the individual injured; and whether the individual injured is a civilian or is subject to military law.

2.   There is, however, this material exception in the case of a person subject to military law, that if the injury affects only his military position or character, a Court of law will not interfere. He has agreed to subject himself to military law in those respects, and must take the consequences. Thus the dismissal of an officer from the service, the deprivation of rank, or the reduction or deprivation of military pay, will not be remedied by a Court of law.

There is a note to this paragraph setting out a number of cases. Then the next paragraph says -

3.   The jurisdiction of a tribunal may be limited by conditions as to its constitution, or as to the persons whom, or the offences which it is competent to try, or by other conditions which the law makes essential; is the validity of its tribunal or proceedings. If the tribunal fails to observe these essential conditions, it acts withoutjurisdiction. An individual officer acts without jurisdiction if he exceeds the limits of the authority conferred on him, whether by Act of Parliament, the custom of the Service, or the lawful delegation from a superior officer.


Senator Elliott - Is it not possible to codify those provisions?


Senator PEARCE - That is the common law, and its scope is far wider, and therefore of greater benefit to the individual, than is the scope of the provisions which Senator Elliott asks the Committee to adopt. The honorable senator has said that officers may do all sorts of extraordinary things, and he mentioned a number of things which they might do. I point out that if an officer did the things for which he would be liable under the provisions proposed by the honorable senator, that officer would be liable to be court martialled himself. If, for instance, an officer interfered with or obstructed the production of books or documents for the purpose of substantiating his case he would commit an offence which would render him liable to be tried by a court martial. I take the case of the removal of an officer from command by the General Officer Commanding. Surely in time of war we must leave to the General Officer Commanding, untrammelled by fear of subsequent civil damages, the exercise of his discretion in that regard. The General Officer Commanding is intrusted with the duty of winning a battle or winning a war. If, in the exercise of his discretion, he removes an officer from a command, according to Senator Elliott's amendments, the officer removed is to have the power of hanging over the General Officer Commanding, it may be for years, the possibility of a prosecution. If such a removal took place in Gallipoli the General Officer Commanding concerned might have had hanging over his head for five years, until he returned to Australia, and perhaps for twelve months after he returned, the possibility of having to meet an action for civil damages when the witnesses essential to support the correctness of his judgment might have been removed by death.

SenatorFoster. - Was it not under similar provisions that Sir Frederick Stopford issued a writ against General Sir Ian Hamilton, and the British Government persuaded him to hold the matter over until the end of the war.


Senator PEARCE - In that case Sir Frederick Stopford exercised the private right of action which an officer or any one else has under the common law. That was an action between man and man. I can see in the provisions which Senator Elliott has submitted many opportunities for conspiracy. I hope honorable senators will realize that it is proposed that, in the event of an officer against whom damages have been awarded under the honorable senator's proposals being without funds, the poor old Commonwealth shall be liable for the damages. That is set out in sub-clause 4 of the proposed new section 123j proposed by Senator Elliott.


Senator Elliott - Does the Minister suggest that any serious number of officers would enter into conspiracy to commit fraud?


Senator PEARCE - I can see that two men of straw might institute a prosecution, and agree to divide the " swag " afterwards. I have said that if damages are awarded, and the officer against whom they have been awarded has no funds, under the honorable senator's proposal, the Commonwealth is to be asked to pay for the act of an officer done at the other end' of the world. I feel sure that if honorable senators examine the amendments which Senator Elliott proposes they will not entertain them for a moment. To introduce two of such provisions into the administration of. our Citizen Army would spell absolute ruin to that Army.We have to call upon citizens to make sacrifices if they take up commissions in the Citizen Forces, and Senator Elliott proposes that we shall also expose them to all sorts of litigation and, possibly, monetary loss. I venture to say that no person will take commissions in our Citizen Forces under such conditions. I ask the Committee to reject the amendments.

Senatorgardiner (NewSouth Wales) [10.25].- I think that the Minister for Defence (Senator Pearce) has unduly exaggerated the danger which might arise from the acceptance of Senator Elliott's amendments. I have read them very carefully, and I consider that they have been rendered almost necessary by the amendment which the Committeehas accepted at the instance of the Minister himself. Take, for instance, the examination of documents which is provided for. Of what use is it to give me the right to appeal, if, at the same time, I am refused the right to see the grounds on which my complaint was turned down? The Minister has himself widened the scope of the Bill at the request of the Committee. As far as the danger of damages is concerned, any officer who injures a person by exceeding his duty has always . been liable to damages. We assume, however, that our officers are carefully selected, and that the danger in question never troubles a man who does not act in excess of his powers. If you, sir, had me ejected from this chamber without justification, you would be liable to damages. In New South Wales one Speaker of the Legislative Assembly had a member of it forcibly removed from that branch of the Parliament. He was sued for damages and he won his case in the Supreme Court, but upon appeal to the Privy Council the position was reversed, and the private member proved victorious. I repeat that any officer who exceeds the powers conferred upon him has always been liable to damages. There is no provision in the amendments of Senator Elliott which would render an officer liable to damages if he had not done wrong. In regard to the question of officers conspiring, I am inclined to think that that is a contingency which is not likely to arise. Nevertheless there have been one or two cases in which a couple of officers have beaten the Commonwealth for many thousands of pounds. The danger of fraud, therefore, is just as great, though no greater, in the Military Department than it is outside of it. Most of the amendments submitted by Senator Elliott are essential, by reason of the amendments which we have already carried.

Senatorfoster (Tasmania) [10.32]. - The Minister (Senator Pearce) made one or two statements which are hardly borne out under the Army Act. He said that one reason why he objects to Senator Elliott's amendments, and I am not entirely in favour of them, is because he does not think we ought to mix up civil and military law. Yet there are cases cited in the Army Act in which the aid of the civil Courts has been invoked to override the decisions of military Courts.


Senator Pearce - Under the common law.


Senator FOSTER - No. There was one case in which it was claimed that a court martial had exceeded its authority.


Senator Pearce - I quoted that. That was a case under common law.


Senator FOSTER - I wish to be assured that no citizenin Australia, because of the lack of provisions in our Defence Act, shall be deprived of any of his rights.


Senator Pearce - That common law runs throughout the Empire.


Senator FOSTER - The records show that in some cases the members of a court martial have been held to be liable for damages, just as magistrates are liable for any illegal acts upon the Bench. But Senator Elliott goes farther than does the common' law as between man and man. Take the case of a court martial which should be constituted of seven members. Suppose that only five members sat upon that tribunal and awarded the prisoner a certain sentence. In such circumstances they would be liable, because the court martial did not consist of the number of members for which the regulations provide. But under the common law an individual officer would also be held responsible. If there be any need for the introduction of clauses of this character into our Defence Act, I am more concerned with the action of an individual officer than I am with the action of a court martial, because, from what Senator DrakeBrockman told us the other night, the actions of the latter tribunals are always reviewed by the legal gentlemen who are attached to the various head-quarters and by the Judge Advocate- General. But very often the action of an individual officer - he may be a company officer or an officer commanding a battalion - is not criticised or reviewed by anybody above him. I have never known of a case in which a senior officer who dealt with a junior officer or a private has had his decision reviewed by any officer above him.


Senator Drake-Brockman - But a private always has the choice of being dealt with either by his commanding officer or by court martial.


Senator FOSTER - Quite so.

SenatorDrake-Brockman. - In the case of an officer, all that we can do is to give him a ticking-off. There is not a recorded sentence at all.


Senator FOSTER - Take the case of a brigadier-general who feels that he has been done a grievous wrong by the one officer who is in command above him. I am not going to say that the officer above him ought to be liable to an action for damages, but I am more concerned with the chance that a man ought to have against an individual officer than I am with the chance he ought to have against a court martial. If the findings of the latter tribunal are properly investigated before the sentence is promulgated, the individual has a better opportunity than he has where he is dependent entirely upon the say-so of an officer.


Senator Drake-Brockman - The honorable senator is talking about promotions, and is pre-supposing that any man has a right to promotion, whereas under the Army Act no man has that right.


Senator FOSTER - I am not dealing with promotions at all. The other night I made it quite clear that up to a certain rank promotions are almost automatic, but beyond that rank they are not promotions at all, but selections. The point I was making when the honorable senator interjected was that an officer may feel that certain military action taken against him has prejudiced him, not merely in his military career, but also in his civil life. At present he has no opportunity whatever of righting himself, beyond getting a military investigation under the clause which we have passed to- . night. He has no opportunity of recovering damages from the individual who may have wilfully damaged him. Our own experience must lead us to believe that there have been cases in which, perhaps because of jealousy or of some pre-existing bitterness between two men in the Army, the under-dog has been made to suffer in such a severe and uncalled-for way as to do him material injury in the Army and outside of it. I desire to take away from the individual officer the power to do wrong to another officer or a private without the injured one having an opportunity to obtain redress by law. If the Minister can assure me that in such cases the injured person has an opportunity of succeeding at common law, I would like to know more about it. I can understand the case of Sir Frederick Stopford, who instituted an action for damages against Sir Ian Hamilton because of the statement by the latter that the failure of the British Army in Gallipoli was due to Sir Frederick Stopford shillyshallying on the beach instead of getting to the front line. Sir Frederick Stopford brought a suit for libel against Sir Ian Hamilton upon the ground that the statement in question had not merely affected him as a military officer, but also in his civil capacity, because it had made him appear to be inefficient.


Senator PRATTEN (NEW SOUTH WALES) - Did they not call him " General Stopfor-dinner " ?


Senator FOSTER - He did not stop for dinner; as a matter, of fact, he stopped for water. He stopped for water on the beach, and Sir Ian Hamilton said that it was his duty to see that the water was taken ashore with the men when they landed.


Senator PRATTEN (NEW SOUTH WALES) - Did he not start to dig in as soon as he landed ?


Senator FOSTER - No. I think that he was engaged upon the beach in the old familiar movement known as forming fours.


Senator Elliott - Can the honorable senator indicate any of my amendments to which he takes objection, and also the grounds of his objections?


Senator FOSTER - Some of the proposals are too loosely drawn, whilst others go a little too far. For example, the first proposal reads -

An officer of the Military Forces, or a soldier, prior to making any complaint in pursuance of the last preceding section, shall be entitled to inspect any books, documents, or papers relating to the matter in respect of which he thinks he has been wronged.

He may consider that he has been wronged by an entry in the private diary of the General Officer Commanding.


Senator Elliott - He could not be wronged by that.


Senator FOSTER - In a preceding provision we have laid it down that if an officer thinks .he has been wronged he shall be entitled to do so-and-so.


Senator Elliott - But he could not possibly know what was in his general's private diary.


Senator Gardiner - The general's batman might have told him.


Senator Elliott - If the batman had access to the general's diary he would be distinctly in the wrong.


Senator FOSTER - Whilst any books, documents, or papers of an official character should be made available to an officer who has been dealt with-


Senator Elliott - There would be a grave danger if we made my first proposal apply only to books, documents, or papers of an official character.


Senator FOSTER - If the honorable senator's proposal is that documents of an unofficial character shall be inspected by an officer or soldier, I cannot go with him. That is what I meant when I said I thought some of the proposed new sections were loosely drawn.

Private or unofficial papers should not be available to an officer. If a general wrote to another general a private letter regarding some other officer, and, as a consequence, certain action was taken, I do not think it should be producible on demand.


Senator Elliott - Do you mean that a general may libel an officer, who shall have no redress?


Senator FOSTER - Certainly not. Probably General Elliott could recall numbers of cases where he has said to a junior officer, " So-and-so is no blessed good." That might only be his opinion.


Senator Drake-Brockman - That is the opinion that counts.


Senator Elliott - A general might do a grave wrong to an officer by saying that he is no good.


Senator FOSTER - The honorable senator, as a senior officer, would be entitled to his opinion, but if what he said was carried back to the officer referred to, does the honorable senator think that officer should be able to go for him for damages, seeing that he was only spoken about in a military sense? In the same way the honorable senator may have said about another officer that he was a " shickerer," when he was not. If that officer could come at the honorable senator for something said in private conversation to another officer of equal rank, how would the honorable senator like it? I do not think that man should have a claim against him.







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