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Wednesday, 26 June 1946

Mr HOLLOWAY (MELBOURNE, VICTORIA) - by leave- On the 21st June, the honorable member for the Northern Territory (Mr. Blain) asked the Minister for the Army, in my absence, a question regarding the case of Major Cousens, and requested that he be given a fair deal and a full opportunity to prove that what he said in Japan was said under duress. In reply the Minister promised that I would make an early statement on the matter and that every opportunity would be given to the defendant to call whatever witnesses he desired. I now take the first opportunity available to me to assure the honorable member that Major Cousens will be given a fair deal and that he will be afforded every opportunity to call whatever witnesses he desires.

In civil life Major Cousens was a professional broadcaster. When taken prisoner on the fall of Singapore, he was placed in Changi camp, but was subsequently transferred to Tokyo. It is alleged against him that at first he broadcast one news commentary daily, and subsequently, for approximately a year, wrote news commentaries for the Japanese short-wave station. These commentaries, it is alleged, were calculated to undermine at a critical stage of the war, Australia's resistance to the Japanese. I do not need to emphasize further the gravity of such a charge. After the cessation of hostilities, Major Cousens was brought back to Australia under close arrest. He was charged, under section 40 of the Army Act, with conduct 'to the prejudice of good order and discipline. The maximum penalty for this offence, in the case of an officer, is cashiering. In January, 1946, the Army authorities asked the Crown Solicitor to consider whether Major Cousens should be charged with a criminal offence before the ordinary courts of justice. It must bc remembered that the alleged offences by Major Cousens took place in Japan, thousands of miles away from Australia. It was necessary to send special investigators to Japan to obtain statements from prospective witnesses. The results were submitted to eminent counsel. They advised, after full consideration, that if the .prospective witnesses gave evidence along the lines of their preliminary statements there would be sufficient evidence to establish a prima facie case of treason against Major Cousens. Such a case has no precedent in the history of Australian law. Indeed, it was never anticipated that an Australian would be open to a charge of adhering to a foreign enemy in a foreign country. Section 24 of the Commonwealth Crimes Act deals only with treasonable offences committed within the Commonwealth. Difficult questions therefore arose both as to the law applicable in the case of alleged treason committed outside the Commonwealth and also as to the competent courts for the trial of such a charge. The advice of eminent counsel was taken also on these points. On their recommendation the matter was referred by me to' the law officers of New South Wales, with the suggestion. that the State Attorney-General should file an ex-officio indictment, under State law, in. the Supreme Court. The Attorney-General of the State did not consider that he would be justified in taking this course. He did, however, suggest an alternative method of proceeding. In accordance with this suggestion, 'Cabinet thereupon decided that a Commonwealth officer should lay an information before justices under the provisions of .section 21 n of the State Justices Act which expressly refers to treason committed on land beyond the seas. This will enable a preliminary investigation to be made before a magistrate who, if he considers a. prima facie case has been set out, may commit the defendant for trial in the usual way before the Supreme Court of the State. Meantime, steps have been taken to bring two essential witnesses from Japan and one from the United States of America. If, on their arrival, these witnesses confirm the statements already made by them, proceedings against Major Cousens will" bc commenced immediately. Whether, in, doing what he is alleged to have done, he acted under duress is a matter for a jury to decide.

I regret that it has not been possible to institute formal proceedings earlier in this case. I repeat, however, that the delays have arisen solely from the unprecedented nature of the case, from the legal difficulties involved, and from the necessity for investigations overseas. I .assure honorable members that every effort i.= being and will be made to bring the case on for trial at the earliest possible moment.

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