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Thursday, 22 April 1915


Mr GLYNN (Angas) .- I quite agree with what has been said by the honorable member for Flinders, because we are dealing with a court martial by persons governed by the Defence Act and the War Precautions Act, subject to Ministerial revision ; but I do hope the Minister, as a sort of court of appeal, will look into the whole of the evidence in the case referred to. It is not for this House to decide whether there has been an error of judgment on the evidence, or an excess of severity in the penalty imposed ; but when it comes to the exercise of military jurisdiction in respect of civilians, I would draw the attention of the Government to the fact that they are apparently introducing a measure to extend the provisions of some of the legislation passed last session in respect of British subjects who are not members of the Military or Naval Forces.


Sir William Irvine - That is quite a different matter.


Mr GLYNN - Yes ; but I wish to draw attention to it, because I understand that a Bill has been introduced in another place which apparently is extending the jurisdiction of military courts over civilians. The experience in the Old Country of the working of military tribunals is that in some cases these powers have been misapplied. These powers in respect of civilians have passed through the House of Commons apparently without criticism, as if the whole debating power of the House had fallen to pieces immediately members were told that such legislation was necessary because of the war. Two of these powers were described by Lord Halsbury as the greatest violation of the principle of Magna Charta yet attempted in the United Kingdom, and yet they seemed to pass with only a mild protest from one or two members in the House of Commons. Those powers have been mis- applied in' England. In one instance a major ordered all subjects of German origin to disappear from a particular district, but the moment this order came before the responsible authorities it was cancelled. So this misapplication of powers continued until at the end of February last an amendment of the War Precautions Act was introduced in the Imperial Parliament in order to give civilians again the right they possessed under Magna Charta of electing to be tried by a civilian tribunal. I speak feelingly on this matter, because I know of the unjust incarceration in Australia of a man of very high character. If the Minister of Defence has heard anything to the contrary, I have not had it communicated to me, although I have had a lot of correspondence with him on the subject. In the light of the fact that the legislation we are copying without consideration has been amended, let us not extend the power of the military tribunals over civilians. I hope the Minister will introduce an amendment of the Act in order to bring it into line with the British legislation, and I would appeal to Ministers to revise every decision of any tribunal, civil or military, but particularly the latter, where the liberties of subjects are involved. I do not wish to impugn military tribunals, but they have not the skill and experience of the civil tribunals. Therefore, I ask the Minister to revise, with the care that a responsible Minister ought to exercise, all decisions that0 affect the liberty of the people. If a man is arrested under some military order, let him not be kept too long awaiting Ministerial consideration, or the reference of his case to some military tribunal.


Mr Fisher - What evidence have you in regard to the gentleman you refer to ?


Mr GLYNN - I know every fact connected with the case. On one occasion I spent a good part of three days in trying to get to the bottom of the facts.


Mr Fisher - Where does this person reside?


Mr GLYNN - In Eudunda, South Australia. The gentleman I refer to is Pastor Nickel, the head of the Lutheran Evangelical Church in Australia.


Mr Fisher - Had he arms in his possession ?


Mr GLYNN - He had not, when arrested.


Mr Fisher - Are you sure?


Mr GLYNN - I am only mentioning this instance to show that if the Minister does npt look into every such case a man may be kept under arrest without trial for nineteen or twenty days.


Mr Fisher - Why did you not bring the case forward earlier '?


Mr GLYNN - I did bring it forward departmentally, and I am sorry I cannot refer to it at greater length. Pastor Nickel was arrested about the 10th December last. A few days previously he had come to Melbourne to ask me, as the member representing his district, to see the Prime Minister on his behalf; that I did. Being doubtful of the treatment likely to be meted out to members of his congregation, the pastor came, as any man has a perfect right to come, to make what was really a superfluous reassertion of his loyalty. I had the honour of presenting his letter to the Prime Minister, and the pastor asked some questions as to the meaning of a certain proclamation. I could not answer them, because I had not seen the proclamation. "At that time he was concerned about the surrender of rifles. As a matter of fact, he had a rifle in his possession, and he desired to know whether he would come under a certain proclamation or notice; if so, he would immediately deliver his rifle to the authorities. He said that he did not desire to consider himself an enemy subject if, as a matter of law, he was not one; and, as a matter of fact and law, I believe he is not an enemy subject. Although I wrote several letters to the Department, I must not be taken now as complaining; indeed, I had no wish to mention the matter in the House. But I have never had any clearance of this man's character from the Department; and, from what I know of him, I believe him to be a man of perfect loyalty and high character. I have asked the Department to inform me of .anything contrary to that view, and the last I heard was that some reports, which T have not seen, are confidential. If this matter did not affect the honour and character of a man whom I believe to have been, if anything, over-scrupulous in obedience to the notice, I should not have mentioned the matter here; but I think it is due to him, as the occasion has arisen, to refer to it. I repeat that I am not in any way blaming the Minister of Defence. The moment a full letter was written by the pastor, through me, to Senator Pearce himself, there was a reply, and action taken within twentyfour hours.


Mr Mathews - You are very lucky!


Mr GLYNN - I know I am, but I may say that, in the case of a communication referring to another question, I waited two months for an answer which could have been furnished within four hours. I hope that the Government, in the legislation they are introducing, will not extend the powers in relation to civilians who are British subjects. On the whole, I dare say the authorities have been prompted by a strong sense of duty in the administration of the Act; and in the case to which I am particularly referring, I am certain that the Minister on the facts in his possession acted with perfect uprightness.


Mr Jensen - Was this gentleman delivering German literature 'concerning the war ?


Mr GLYNN - I do not believe he was. I forwarded a statement extending over about twenty sheets of foolscap, and requested the Department if they knew of anything to be wrong regarding this gentleman to let me know; and if such information had been furnished I should not have gone an inch further in the case. I wrote to the Attorney-General and also to the Secretary to the Attorney-General, asking whether any action had been taken, or was to be taken, under the Act as to the grounds of arrest, but I got no reply from the latter. I may say that I was afforded every opportunity of seeing this gentleman, and I obtained from him the long statement, which he had written, I believe, for the press, but which, very properly perhaps, he was not allowed to publish pending an inquiry. My communication reached the Minister on the Saturday or the Monday, and on the following Tuesday this gentleman was released; and I myself expressed my opinion to Senator Pearce that he had then acted with celerity. I told the pastor that I was certain that, if the matter came under the personal cognisance of the Minister of Defence or the Attorney-General, and they had time at their disposal, justice would be done. This case has been much discussed in South Australia; and on the facts as known to mo, I express the conviction - which, however, may be wrong - that this is a man of very high character, and, as I say, perhaps over-scrupulous, to his own detriment, in the reassertion of his loyalty. I again express the hope that the Government will modify the legislation so far as it extends jurisdiction over civilians. As to the rifle, I may tell the Prime Minister that the moment the pastor asked me the meaning of the notice to deliver up arms, I telegraphed to the Department asking the meaning, and< expressing that which I attached to it.' The notice really did not say what it meant, but I was given to understand that my interpretation was the correct one. I told the pastor that it would be better not to take legal advice, but to give up the rifle, considering the difficult times and the great responsibility which rested on the authorities. The next morning he wrote to me saying he had delivered up the rifle; but, nevertheless, he was arrested four or five days afterwards for some alleged technical breach of the regulation. I have spoken with some emphasis, because, although the Department may have acted for the best, according to its lights, this man suffered nineteen days' incarceration, while, to my own knowledge, he is a man, in appearance at least, of honour and loyalty.







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