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Wednesday, 10 August 1921


Senator PEARCE (Western Australia) (Minister for Defence) . - I may inform the Senate that when I learned that this notice of motion was to come on for consideration to-day, I inquired if the regulation had yet been tabled, and ascertained that it, had not. As a matter of fact, it was only made at the end of last month, and in the Acts Interpretation Act there is provision that thirty days may elapse before a regulation is laid on tha table. I laid the regulation on the table to-day, otherwise this discussion would not have been in order. Before I proceed to explain the necessity for the course decided on by the Government, I may bs permitted to refer to one or two matters mentioned by Senator Elliott in regard to information given to the Senate about this corps. The honorable senator said that the return did not cover all the expenditure. That is incorrect. It does. He also said that it did not provide for a judge advocate-general. I may inform Senator Elliott that there is a judge advocate-general now - Mr. Le Gay Brereton, a lawyer, of Sydney, who acts in the capacity of a Citizen Force officer, and who has rendered very valuable service to the Commonwealth. I do not propose to follow Senator Elliott's references to the gossip about what took place at Salisbury Plain. We are not concerned with: that matter to-day. He also said it was unnecessary to make this regulation, because very few courts martial are constituted in peace time. I admit that; but that will by no means be the only duty to be performed by these officials, as I shall explain later. In order that I may put this somewhat technical matter clearly before the Senate, I trust that I may be excused if I enter into some detail. An army is divided into what are termed departments, and this, apparently, furnishes the daily press with the opportunity for the use of adjectives in their endeavour to mislead the public. For the purpose of this discussion, I may say that an army rs divided into three tranches, one consisting of the fighting troops, the second of the administrative services, and the third of the administrative departments. . We need not concern ourselves with the fighting troops, which constitute the first branch of the army. The second includes such services as the army medical, veterinary, transport, and other services necessary to maintain in the fighting troops, while the Administrative Department includes the Pay Staff Department, Chaplains' Department, and others. One has only to mention these to see how ridiculous it is to suggest that because they are called Departments they necessarily include all the paraphernalia of a Government Department.


Senator Keating - Some people believe they are a Department of State. (Senator PEARCE. - Yes, and the paragraphs that have been appearing in the press are intended to give that impression. In the Army the chaplains are included in a Department, but there are no clerical staff or permanent officers connected with it. It simply means that all those who are chaplains are in the Chaplains' Department. And then, of course, there is the Legal Department, auxiliary to the administrative services, and also necessary, as one can see, for the wellbeing and also for the discipline of an army. A mistaken idea, has arisen as to the scope and functions of the Australian Army Legal Department owing, I think, to the use of the term "Department." That term, as used in the designation of the proposed legal section, is in no way analogous to the term as employed in re ference to the ordinary Federal Government services, but is applied to sections of the Military Forces in the way I have stated. The proposal is not, as has been erroneously stated, to form a new Federal Department involving the appointment of a number of permanently employed officers and the creation of large staffs. The appointments which may be made in this Department - it does not follow that all of them will be made - will not, at the outside, exceed seven lieutenant-colonels, fifteen majors, and eighteen captains. They will in every case be officers of the Citizen Forces. There are quite a large number of officers with similar ranks in the Citizen Forces, but they do not receive any pay unless and until they are called up for duty. When they are called up for duty they have to leave their ordinary avocations to go into camp, so that in such circumstances they are, of course, paid. That will be exactly the position of these Citizen Force officers in the legal section. Although they are on the establishment, and will be given these ranks, unless and until they are called up for duty they will not be paid.


Senator Keating - Is it proposed to have six deputy judge advocates-general?


Senator PEARCE - Yes ; one for each division. We have a judge advocategeneral at the present time. These officers will not be employed except for an equivalent of approximately sixteen days in each year. That is the maximum period, as distinctly laid down in the Defence Act, and we cannot exceed it. It is the ordinary duration of the annual training of the Citizen Forces. If they are called up they will receive the pay of their rank, and if employed for the full sixteen days in any one year they will receive - Lieutenant-colonels £30, majors £24, and captains £18. This, I may say, is less than the amount annually received by a Citizen Force officer of corresponding rank in a unit of the Artillery or Engineers, since such officers may be called up for twenty-five days a year. Assuming that all these officers were appointed and called up for the maximum period of sixteen days a year, the total payments made to them would be, as I have already informed the Senate. £894.

It is anticipated that most of these appointments will be made from oxAustralian Imperial Force officers now serving in the Citizen Forces. They will be attached to the staffs of the various formations, and Will be distributed throughout the Commonwealth. -No new staff, clerical or otherwise, will be required or formed as the result of the creation of this section.


Senator THOMAS (NEW SOUTH WALES) - But they soon will be required.


Senator PEARCE - Not at all. They will not be required any more than we require to make clerical appointments because we have a Chaplains' Department. The ordinary staff of the Defence Department has to do the clerical work of the Pay Department and the Chaplains' Department, and it will also have to do the clerical work of this Department, so that no additional expenditure other than that which I have mentioned in respect of pay will be involved. Assuming that all these officers are appointed, and called up for the maximum number of days, the total annual payment for the Commonwealth will be £894.


Senator Keating - But duties may arise which will involve their employment for more than sixteen days per annum.


Senator PEARCE - We cannot call them up for more than sixteen days, so that any additional duty extending beyond that period would have to be carried out by these officers in an honorary capacity. I repeat that we have no statutory or other authority to call them up for more than sixteen days. That is the maximum under the Defence Act.

In one respect, to which I shall refer later, this legal section, in my judgment, will be responsible for a saving in Government expenditure.


Senator THOMAS (NEW SOUTH WALES) - That is interesting.


Senator PEARCE - It is anticipated that the formation of this section will lead to a saving in Government expenditure. Its formation is the result of our experience in the late war. On the outbreak of war it was found that the members of the Citizen Forces, both officers and non-commissioned officers, were greatly lacking in their knowledge of the administration of discipline, and officers generally were almost totally ignorant of the mere procedure to be followed in laying a charge. During the first months of the war, and especially in Australia - not overseas, but in Australia- this lack of knowledge on the part of the Citizen Forces which formed the nucleus of the Australian Imperial Force was responsible for much indiscipline, and it was not until after some months' experience ora service that the administration and discipline as a whole began to work efficiently. That condition was by no means peculiar to the Australian Army. Subsequent to the war - and I drew attention to this when I was dealing with the Defence Bill - numbers of illegal awards made during the war through, ignorance have had to be rectified, and even at this period cases keep cropping up for adjustment. It was this lack of knowledge also that, in some instances, involved the Commonwealth in expensive litigation. The training of the Citizen Forces is in itself a preparation for war in the event of this country being again forced to take up arms; and if the Citizen Forces are to be trained they must be trained in this respect as well as in others. Should we train them in every other direction and leave them untrained in this most essential particular, which has so much to do with discipline?

Not only does the formation of the legal section provide an essential organization ready for immediate service in the event of war, but.it also provides a system by which officers of the Citizen Forces can be thoroughly trained in peace time. Court martial work, although very important in itself, will, it is anticipated, form a minor portion of the functions of the legal section in peace. Its most important duty will be the instruction of officers, not only in the administration of the Act and regulations in relation to military, law, but also in the administration of the provisions of the Acb relating to the prosecution of defaulting trainees. Our Citizen Force is almost entirely officered by Citizen Force., officers, and those officers are the machinery by which we enforce the compulsory provisions of the Defence Act. They deal, for instance, with defaulting trainees.


Senator Elliott - Do not the adjutants attend to that work!


Senator PEARCE - -They may do a certain amount of routine work, but the direction of that class of work is under the control of the commanding officer, and his is the responsibility. It is necessary, therefore, that these officers should be suitably instructed in the law they have to administer. The Department, with a view to saving expense, has insisted on these prosecutions being conducted by military officers, and has not permitted the employment of barristers and solicitors, with all the heavy expense that would thus be entailed. This system, by which prosecutions are conducted by officers without legal training, although desirable from the financial point of view, cannot be expected to operate without mistakes being made, involving damages against the Department, unless the responsible officers receive very careful instruction and advice. Here is a case in point: In one training area alone, the Commonwealth some "years ago was obliged to pay over £600 in compensation for illegal detention. One or two such cases would involve the payment of more than is proposed to be expended in respect of this legal section. The amount of £600 paid by way of compensation does not fall far short of the maximum payment that can be made in connexion with this scheme.


Senator Elliott - Was the illegal detention awarded by military officers or by a bench of magistrates?


Senator PEARCE - It was illegal detention by military officers.


Senator Lynch - The civil Courts had nothing to do with it ?


Senator PEARCE - No. Had there been available to the responsible officer the legal advice and instruction which this scheme will afford, I doubt whether one penny of that expenditure would have been incurred, to say nothing of the other unsatisfactory phases of the occurrence. Although it is not intended to ask the legal officers to undertake prosecutions, yet their advice and instruction on such matters will be invaluable. In addition to the important instructional duties of the legal section, one of its functions will b& to advise formation and other commanders on all questions affecting military law, and the administration of the Act and regulations, and in its advisory capacity it will be of the greatest assistance to our Citizen Forces. In regard to their services in relation to courts martial, one of the most important duties of legal staff officers will be to act as judge advocates, in which capacity not only will they advise the courts as to the proper procedure, and on all points of law that arise, but also it will be their duty to insure, that all accused persons requiring it receive legal advice as to the conduct of their oases, and that the accused do not in any way suffer through their inability, perhaps on account of the expense, to provide themselves with counsel. This is a very important function, and soldiers should not be deprived of this assistance in setting out their defence. (Senator Lynch. - Did they not have this right before?


Senator PEARCE - Not in this way. There was provision for what is known as the " soldier's friend " at a court martial. These regulations are not simply to enable the Department to secure convictions against soldiers, but also will help a -soldier to get advice and a fair trial.


Senator Elliott - Will the soldier not be permitted to' have a " soldier's friend " in future?


Senator PEARCE - Yes; and, in addition, he will be entitled to this advice. Legal staff officers will also be appointed to act as members of courts martial and courts of inquiry when the cases before the courts entail questions of. law, with which ordinary officers cannot he expected to be familiar.

In connexion with this question, I would like to invite the attention of senators to some extracts from the report of the Committee constituted by the Army Council to inquire into the law and rules of procedure regulating courts martial. The Committee assembled in July, 1919 - quite recently, when it had the advantage of the war experience - and was composed of twelve members, included among whom were the following: - Mr. F. Cassel, K.C., Judge Advocate-General; Lieut.-General the Earl of Cavan, K.P., G.C.M.G., KC.B., M.V.6.; the Eight Hon. Lord Hugh Cecil, M.P. ; MajorGeneral Sir B. E, W. Childs, K.C.M.G., CB., Deputy Adjutant-General; and Mr. Horatio Bottomley, M.P., as well as other members of Parliament. I draw particular attention to the fact that ,the Eight Hon. Lord Hugh Cecil and Mr. "Horatio Bottomley were members of this Committee because they both are well known for their impartiality, indepen9dence, and outspokenness. The following extracts are taken from the report of that Committee, which was composed of such eminent men - men who could be relied upon to consider every phase of the question, and not only the aspect which would present itself to the military mind: -

No disciplinary code, however well drafted, can be expected to work satisfactorily unless the officers chiefly concerned with its administration are not only fairly familiar with its provisions, but have also a fair knowledge of the principles of criminal law and of the rules of evidence, and are reasonably familiar with the practice and procedure in ordinary criminal Courts. We concur in Lord Cavan's opinion that the remedy for most of the hard cases complained of is to be found " not so much in any great alteration of the existing law as in the more effective instruction of the proper tribunals for administering the law."

During the war the system was introduced of employing in connexion with the work of courts martial special officers, who were either barristers or solicitors, and who were called court martial officers. There appears to be a consensus of opinion among both witnesses and persons who have submitted suggestions that in some form or another this system should be made permanent.

We agree with this view, and we recommend that both in the Army and in the Royal Air Force large formations - say, commands and areas- - should have qualified legal advisers, who would be available for general legal work as well as for court-martial work. These legal advisers should bo barristers or solicitors; they should also have had experience of military discipline and administration, and should hold a commission so as to render them amenable to military or Air Force law. They should be appointed on the recommendation or with the approval of the Judge Advocate-General, and should be responsible for the proper discharge of their duties.

We have adopted practically in toto the recommendations of that Committee.


Senator Elliott - The Committee makes no recommendation as to form. It simply says in some form or another.


Senator PEARCE - That is so; but any one who compares our regulations with the Committee's- recommendation will see that they give effect to what the Committee- recommended. We were forced ultimately to adopt in the Australian Imperial Force the system mentioned by the Committee of appointing court martial officers, and found it to be of the greatest value. It will be seen that the proposed regulations are intended to do exactly what the Committee so strongly recommended, but go further, and not only provide for efficient instruction in peace of officers, including regimental officers, in duties that will fall upon them in war, but also furnish a most valuable factor for the efficient' administration of the Army at such a time. The unjust attacks which have been made against the scheme on the ground that the setting up of a new and expensive Department is being attempted are misleading and unwarranted. I am confident that honorable senators will realize that the return for the money expended will be out of all comparison with the small cost entailed, and that the proposed scheme is very necessary for the efficient training of the Citizen Army.

Before concluding, t must express some surprise at Senator Elliott's attack upon these regulations, because, having taken careful note of his remarks on the Defence Bill, I considered that he would be favorable to a change in this direction. I may have misinterpreted his views, but I ask honorable senators to judge from certain remarks of Senator Elliott, which I shall quote, whether I was not right in believing that he was favorable to a change in the system as adopted in the Australian Imperial Force towards the close of the war. Senator Elliott said, speaking on the Defence Bill -

It is useless to give the valuable, rights conferred by the clause just passed unless wo surround them with some sort of legal sanction which will keep officers administering the Act "on the rails."

Again, when he was advocating . that all cases dealt with by courts martial should be open to review by a civil Court, he said -

I contend, however, that the investigations should be made by a Judge who is accustomed to weigh evidence.

The inference was that decisions had been arrived at by people who were not trained in the weighing of evidence. But, perhaps, this is the most forceful of the honorable senator's remarks -

The common law applies, I admit; and 1 urge on the Minister that he instructs his Law officers to codify that law so that the public may understand it, and not be obliged to pay high fees to lawyers in order to have the law pointed out to them. I have endeavoured here to produce something in the nature of a code, and the proposed additional sections deserve the serious attention of the Commitee.

Again, he said -

A permanent officer of the Defence .Forces might have a fairly good knowledge of the military law, and, perhaps, of the common law, but the average citizen or soldier would not have that same, knowledge.

All these remarks tend to show that the honorable senator believed there was necessity for a change in these matters. Senator Drake-Brockman, speaking on the point, said -

Analyzing the matter, the position was that there was a lawyer on the Brigade HeadQuarters Staff, another on the Divisional HeadQuarters Staff, and another on the Corps HeadQuarters Staff; there was a whole staff of them at Army Head-Quarters, there were more at General Head-Quarters, and finally in London there was the Judge Advocate-General, who had a large staff of trained lawyers at his disposal to assist him in reviewing all the cases which came from the Armies operating everywhere. That was .the system in operation, and honorable senators will see that it provided for the protection at each case being considered from the calm and purely legal point of view.

Senator Elliott'scomment was

We' have had a fine picture of the perfection of the military jurisdiction painted for us.

I had fair ground for assuming that when Senator Elliott was criticising what he declared to be faulty administration he indicated his belief that the fault was due to lack of acquaintance with the law, or the administration of the law, on the part of Citizen Force officers in the Australian Imperial Force, and that it was necessary they should get proper advice and instruction in order to enable them to carry out the military law. That is just what this legal section is intended to do, and, in my judgment, the regulations are framed with that intention. Senator Elliott has not shown that they will not carry out the object in view, and I ask the Senate not to disallow them.







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