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Wednesday, 10 August 1921


Senator ELLIOTT (Victoria) .- I move -

That Statutory Rule No. 138 of 1921, being Defence Regulations, be disallowed.

Statutory Rule No. 138 of 1921, to which I direct attention, provides for certain amendments of the Australian Military Regulations of 1916, and gives authority to the Government to constitute a legal branch of the Defence Department. It seems to me that, if this step is to be taken, provision should be made for the contemplated legal branch by an amendment of the Defence Bill which is now before the House of Representatives. I understand that it is intended to appoint to the proposed branch a number of lieutenant-colonels, majors, and captains of the Citizen Forces, together with a judge advocate-general, a deputy judge advocate-general, and other officials. Replying to questions on the subject which I put lastweek, the Minister for Defence said that the cost of the proposed branch would be between £890 and £900 a year; but that must provide only for the officers of the Citizen Forces who may be appointed to' the legal branch; it cannot cover the salaries of the judge advocate-general or deputy judgeadvocategeneral, and the necessary staff of clerks and officials, and must, therefore, be less than the actual cost of the proposed branch would be. Although many of the officers of the legal branch will be officers of the Citizen Forces, they will not merely be officers connected with a battalion or a battery who happen to have legal qualifications. The present practice is to nominate officers from the different units to serve on courts martial ; but apparently it is now proposed to create a special legal corps. I object to this on the score of economy asbeing unnecessary. The Minister, in answering my questions, admitted that it is not anticipated that there will be many courts martial during a time of peace. It might be contended that a legal corps of the kind proposed would be necessary in war time, when a great many courts martial are held ; but in peace time, when courts martial are rarely held, they could be constituted of officers of legal qualifications serving in the ordinary way. My reason for moving in the matter is that, unless this proposal be debated, its defects cannot be made known. One defect that I see in it is that, whereas the Judges of Civil Courts have no hope of promotion and nothing to fear from Government action, the lieutenant-colonels, majors, and captains who will constitute the proposed legal branch or corps will hope for promotion, and may be influenced in their decisions by the knowledge that head-quarters is watching them. It may be said that that is absurd ; but during the recent war our experience was that head-quarters watched pretty closely the proceedings of courts martial, and officers were made to feel that their efforts on behalf of an accused man would be remembered against them.


Senator Vardon - That is a very serious thing to say.


Senator ELLIOTT - It is.


Senator Duncan - Was the honorable senator influenced in that way?


Senator ELLIOTT - I sat on only one court martial during the whole of the war, and therefore I could not have been influenced. Recently I had a conversation with an ex-officer, who is now one of the leading solicitors .practising in Sydney, and he informed me that during a period of convalescence at the camp at Salisbury Plain there were 200 men awaiting court martial on one occasion. A batch of thirty came before the court martial on one occasion, and he appeared before the tribunal as prisoner's friend. He added that twenty-five or twenty-six of these men were acquitted, and that he was promptly called before one of the staff and told that they did not at all want these men to be acquitted. He was thereupon transferred from 'Salisbury Plain to Weymouth. It seems to me that if we constitute this "legal department" we shall be doing something that has been done in no other country of the world, so far as I know. In any case, this course ought not to be taken until the whole proposal has been dealt with by Parliament. We should not part with any of our privileges in this way by allowing legislation by officials in the Defence Department.


Senator Keating - But in passing the Defence Act we authorized regulations to be made, although not necessarily this particular regulation.


Senator ELLIOTT - But those regulations are subject to approval by the Senate.


Senator PRATTEN (NEW SOUTH WALES) - Can the honorable senator tell us why this new Department is. not necessary?


Senator ELLIOTT - It is unnecessary in peace time, because the number of courts martial is so few. These regulations, and the power of appointment thereunder, should be reserved for time of war. Amongst other duties, these officials will be expected to instruct Citizen Force officers in military law, but we maintain a Military College in New South Wales at a very great expenditure. The graduates of that institution pass in military law, and, presumably, they know something about it, so surely they ought to be in a position to instruct our Citizen

Force officers in that law during peace, time. Therefore, there should be no necessity to make these special appointments. The Minister admitted that their duties would be chiefly instructional, and I suggest that at a time like this, when economy is so necessary, we should not put the country to the expense of these fresh appointments.


Senator Crawford - Would not legal officers have special qualifications to impart instruction in military law?


Senator ELLIOTT - I do not think so. There is nothing to indicate that any of these officers would be specially qualified in the principles of military law. They may have qualified at our universities in ordinary law, but military law is not a subject laid down for examination to qualify as a barrister and solicitor, whereas graduates of our Military College are compelled to qualify specially in military law. For these reasons I submit that the regulation should be disallowed.







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