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Thursday, 12 May 1921

Senator PAYNE (Tasmania) .- I entirely fail to see how the liberty of the subject can be imperilled in any way by this clause.

Senator Benny - The poor trainee may be subjected to detention.

Senator PAYNE - But he cannot be taken into custody by the Defence Department except upon an order of the Court.

Senator Foster - The clause does not say so.

Senator PAYNE - It says so quite clearly. The ordinary procedure is for an order of the Court to be made. That order is written in the records of the Court, and is signed by the presiding magistrate who makes it. Such an order will be a sufficient authority for the military officers to take the defendant into their custody. If the magistrate fails to issue the warrant in the prescribed form, that will not affect the holding in custody of the defendant.

Senator Pearce - We may be proceeded against on a writ of habeas corpus, and we should want the warrant then.

Senator PAYNE - The Defence Department wishes to be assured that after the order of the Court has been made it

Can get the custody of the defendant again.

Senator BENNY - It can easily do that.

Senator PAYNE - I am quite satisfied that the liberty of the subject is not imperilled by the clause in any way.

Senator Duncan - Suppose that a few hundreds of trainees in one place were arrested without warrants being issued, they might be detained merely upon the memory of a military officer.

Senator PAYNE - The only authority under which an officer could detain them would be an order of the Court. Occasionally, of course, there may be neglect to issue the warrant in the prescribed form. If the order of the Court is made in the ordinary way, and appears over the signature of the magistrate in the Police Court records, that ought to be quite sufficient.

Senator Benny - In a civil case if there is a - failure on the part of the Court in connexion with the warrant, the prisoner is allowed to go free.

Senator PAYNE - I am as anxious as any other honorable senator to preserve the liberty of the subject, and 'if I thought it was going to be imperilled in any way by the addition of this proviso, I should certainly oppose it. I listened carefully to the arguments of Senator Gardiner and Senator Benny, but they do not carry sufficient weight to induce me to alter my opinion as to the necessity of the clause.

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