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Thursday, 12 May 1921


Senator GARDINER (New South Wales) .- The Minister for Defence introduced an important amendment to-day which may certainly be said to be the outcome of representations made in the course of the discussion of this measure. Obviously the Department and the Minister were sufficiently impressed to bring forward the amendment which has been accepted. I point out that sub-clause 1 of the proposed new section 12 3i really forms a corollary to the Minister's amendment; for what is the use of giving the right of appeal unless at the same time the individual concerned is afforded an opportunity to procure the evidence which will justify it? That is one reason, first, why \hi Committee should accept Senator Elliott's proposals, and, secondly, why it should deal with them piecemeal, and not reject the whole because certain portions may not be convincing. Senator Foster logically attacked sub-clause i, but I differ from him. When the Bill waa introduced no right of appeal was provided. The lack of such right is a long-standing grievance. When this very matter was first debated in the Senate I advanced what I considered a proper suggestion, namely, that a Committee appointed by this Chamber should represent a final Court of appeal. Had honorable senators possessed a proper estimate of their own importance my proposal would have been adopted. I did not press it in the form of an amendment,, however, because I perceived a spirit of hostility thereto. A practical suggestion lias been submitted to the Committee by an honorable senator whose services, particularly in connexion with this Bill, have been of such assistance to the Military Department particularly that a clause has been introduced by the Minister which, to some extent, gives effect to his suggestion. A little while ago a provision similar to this was turned down by the Minister for Defence, who lightly brushed it aside; but when Senator Drake-Brockman took up the cudgels on the question of the right to appeal in some form, and one honorable senator after another, including the military members of the Senate, brought their sense of sweet reasonableness to bear, the Minister gave way. This is a reasonable proposition, not only as to appeals, but to give the individual concerned the right to peruse official documents or evidence concerning his case. It does not give a soldier the right to peruse private diaries or documents that have no bearing on the appeal which he has lodged; it is only to allow a soldier who considers that he has been wrongfully treated to have access to the necessary documents to prove his case. An officer or soldier submits his complaint in accordance with the regulations, and makes out an unanswerable case only to find out that the officer has either turned it down, or has reported it to his- superior officer, where the matter drops. These amendments provide that the individual shall have the right to ascertain the nature of the report.

I do not agree with sub-clause 2 of the proposed new section 123i, because the machinery provided is too cumbersome.


Senator Elliott - What does the honorable senator suggest? I am quite prepared to allow cases to be dealt with by a police magistrate.


Senator GARDINER - I am in favour of cutting the legal fraternity out of it altogether, because I do nob think they should have anything to do with military operations. I understand that these amendments have been moved merely to give effect to those which the Committee has recently carried.


Senator Elliott - How could cases be settled unless there was some tribunal before which men could appear?


Senator GARDINER - The machinery is altogether too weighty. Our High Court Judges are too fully employed with other important work to be called upon to deal with the supersession of officers. We have passed an amendment to give officers,, non-commissioned officers and men the right to appeal through different channels, and we cannot legislate for all the details that may arise. We have to recognise that in endeavouring to legislate for exceptional cases we may weaken the Act, and it would be very difficult to insert a provision dealing with untruthful evidence, which could be regarded as an exceptional case. I am in accord with the intention of Senator Elliott, who wants only a fair deal, but the suggestion embodied in his amendment, that an inquiry on oath should be held before a Justice of the High Court or a Judge of the Supreme Court of the State as to the truth of the denial, contradiction, or allegation, as the case may be, or to any other matter relevant to the complaint, is getting somewhat wide of the mark. Tonight we have passed an amendment to give the soldiers the right of appeal through different channels, and I think we should allow this measure to be in operation for a few years and then see by experience if this particular amendment is necessary. Senator Elliott must realize after his close contact with military operations that there is a good deal of petty jealousy even among the high officers, and it is quite possible for injustice to be done. I do not think, however, that he is right in anticipating that he can bind them down by an amendment of this character. He is anxious to provide that by the time the case reaches the GovernorGeneral there shall not be any possibility of an untruthful statement being used against a man.


Senator Elliott - That is so.


Senator GARDINER - Much as I agree with the intention of the honorable senator, I do not think that it is practicable to incorporate some of the provisions he suggests in the Bill.


The CHAIRMAN (Senator Bakhap - I must draw the honorable senator's attention to the fact that the time allotted to him under the Standing Orders has expired.







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