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Thursday, 12 May 1921


Senator FOSTER (Tasmania) . - These proposals will cause a great deal of discussion amongst soldiers' organizations, and for that reason, particularly as they are put forward by an officer of Senator Elliott's experience and reputation, we should give them the fullest consideration. I am particularly against sub-clause 2 of the proposed new section. It does not say the Minister " may " take action indicated; it says he. "shall" do so. It directs the Minister to invoke the aid of a High Court Judge or Judge of the Supreme Court of a State iu a matter which it should not be necessary to submit to a judge at all.


Senator Elliott - It is only a question of fact as to whether there is any document missing, or any lying statement.


Senator Pearce - I have seen a report sent back to an officer in Egypt from an officer out in the desert, in which a number of Australian citizens had the letters "N.B.G." opposite their names. Under this amendment any one of these men would have an action for damages.


Senator FOSTER - In the Minister's amendment, which we have already adopted, certain lights of appeal have been given to officers and men. Senator Elliott now suggests that, if a man thinks there are letters in existence which he is not allowed to see, the Minister must direct a Judge to find out who is telling the truth. That would be prostituting, the work of the Judges.


Senator Elliott - Is the character of an officer then of no value?


Senator FOSTER - Of course it is of value.


Senator PEARCE - The Judge's duties are defined by the Judiciary Act. I could not direct a Judge to make an inquiry.


Senator FOSTER - The Judges are appointed to try questions of law, and are only diverted from that work when they are appointed with the powers of a Royal Commission.


Senator Elliott - That is practically what' this would be.


Senator FOSTER - Then the honorable senator is asking that the Minister should appoint a Royal Commission in every case to inquire whether an officer's complaint that certain documents were not forthcoming was justified or not. The whole thing is too frivolous. It would be different if the honorable senator proposed that a Royal Commission should be appointed only where an officer made a complaint to the Minister, and asked for a Royal Commission to ascertain whether certain allegations made against him were justified or not, seeing that they had been detrimental to his character either as an officer or as a man.' We should not ask a Judge to do work which could be done by a junior clerk who searches the records.

Sub-clause 4 of proposed new section 123i provides that " the finding of a Justice or a Judge on any matter referred to him shall be conclusive." I do not see the use of that. The Judge might say that there are more papers which ought to be produced; but, if they' are not there, it really does not matter whether the Judge is of one opinion or another.


Senator Elliott - Surely the Commission would have power to order the production of all papers that could be found.

Does the honorable senator suggest that the Judge should have the powers of a Royal Commission?


Senator FOSTER - As a lawyer, the honorable senator should know that the findings of Judges are never conclusive. Sub-clause 6 sets forth that if any officer whose duty it is to investigate a complaint disregards the provisions of the Act or any regulation for the redress of wrong, he is to be deemed unfit to serve. By whom is he to be deemed unfit? Not by a Justice, or a Judge, for that individual is done with in subsection 4.


Senator Elliott - The Judge. in his finding, would decide that.


Senator FOSTER - I cannot follow the force of the honorable senator's proposal. He offers no provision under which a Judge may find whether an officer has wilfully and knowingly disregarded any provisions of the Act. I regret that I cannot support the amendment.







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