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Friday, 23 April 1915


Mr HUGHES (West Sydney) (AttorneyGeneral) .- The honorable member has misunderstood the scope and purpose of the Bill. With the spirit of his remarks I quite agree. It is intolerable and odious in a Democracy that there should be distinctions of class, sex, or status; but military discipline and trial by court martial are inevitable consequences of the militarism imposed upon us by inexorable circumstances. It is notorious that the ideal and basis on which Democracy rests are incompatible with militarism, and where they co-exist militarism is a menace to Democracy. But these questions are not now before us. We are discussing now a question relating to the war and the conduct of the war alone. We are not proposing to impose upon any soldiers or sailors or any persons in the Defence Department greater disabilities than those from which they now suffer, whatever these are. Such a proposal as the honorable member has outlined- the establishment of a Board capable of trying military and civil causes - cannot be introduced in this Bill. The Bill, so far as it touches the matters referred to by the honorable member, deals with two classes of persons - traitors, whether of alien or British descent, and persons guilty of such careless or criminal negligence as to imperil the safety of the Commonwealth. Under the Bill all offenders are liable to the same punishment, whether they be civilians, soldiers, or sailors. The only distinction lies in the tribunal which tries them. And this distinction is, I submit, not only justifiable, but necessary. I am not going to say anything in support of courts martial, but shall refer the honorable member to some observations I made when introducing the principal Act, and will ask him to listen carefully to what I say, so that he may know exactly the position in which the soldier, sailor, and civilian in this country, under this law, will stand, and the attitude of the Government on the matter. I said then -

The Bill is retroactive, but it is not the intention of the Government to so apply it unless in regard to an offence so rank in character as to justify recourse to such an unusual remedy..... This clause has been made very wide, but the aim of the Government will bo to use it as little as possible, and to as limited an extent as possible. . . . I do not believe that we shall need to have recourse to courts martial other than those within the ordinary control of the military, and provided for under the Defence Act. It is quite certain, however, that all cases cannot be dealt with by the civil law.

Meaning the civil law as it then stood -

There is about the civil law a majestic dignity and circumlocution which unfit it to deal with espionage and treachery in a time of national danger. It is for that purpose, and that alone, that we desire a sharper and readier instrument, and to it we shall resort only in the very last extremity. The Prime Minister has given the honorable member his positive assurance, and I give him mine, that this power will be used only when absolutely necessary, and only to the extent that is absolutely necessary.

I said also that all cases tried by court martial under the War Precautions Act would be referred to me, as representing the civil law, before the sentence was executed. I referred honorable members to section 99 of the Defence Act, which provides " that the proceedings of a court martial other than a regimental court martial shall, after promulgation, be forwarded to the Minister for transmission to the Attorney-General for record." And I gave my assurance, and I repeat it, that all sentences by court martial will be forwarded to me as representative of the civil law, and may be re viewed by me if necessary. From this it follows that persons tried by court martial under this Bill are as much under the aegis of the civil authority as those tried by the ordinary tribunals. In effect, this is a Bill to confer on the Executive Government power to deal directly with offences which ordinarily come before the civil Court. That assurance, I submit, is an adequate and full answer to the honorable member's objections. It is a positive assurance that all law in this country proceeds from, and is dependent upon, the will of the people as expressed through their representatives and the Government. And although some of these powers may be executed by military tribunals, these tribunals are subordinate to, and cannot act save by the authority of, responsible Ministers.

I come now to sub-section 8 of the proposed new section 6, which is the only portion of the Bill to which my brief explanation is not a sufficient answer. Sub-section 8 reads -

In the event of any special military emergency arising out of the present war, the GovernorGeneral may, by proclamation, forthwith suspend the operation of sub-section 6 of this section, cither generally or as respects any area specified in the proclamation, without prejudice, however, to any proceedings under this section which may be then pending in any civil Court.

Sub-section 6 provides for civil trial in the ordinary way. In regard to that, I wish to repeat, first of all, the positive assurance I gave in introducing the original measure, that this power is only intended to- be used in those cases where the position of the Commonwealth stands literally trembling in the balance. It does not refer to an emergency which arises out of any circumstances mentioned by the honorable member for Melbourne Ports, but to rank and wholesale treachery, or such an attack on the very vitals of the nation as would render anything less than the sharp sword of martial law impotent to deal with it.

This new sub-section 8 affords no more power to the Government than it already has. Every Government has, and must have, power, in a case of extreme urgency, the right to suspend the civil law and substitute martial law. All that this amendment docs is to express this in statutory form. This measure is not, as the honorable member seems to think, aimed at soldiers and sailors, because they, of all people, are the least likely to be guilty of treachery or any act calculated to imperil the safety of the Commonwealth, but is aimed at men who, under cover of British nationality or naturalization, are plotting and contriving to the detriment of the Commonwealth. The powers asked for under this Bill are great, but the circumstances of the nation demand them. As to the manner in which these unusual powers may be used, the experience of the past few months is, I venture to say, a sufficient guide. The War Precautions Act, which was passed some six months ago, gave the Government tremendous power, and let honorable members point to one of those powers which has been abused by us. Let honorable members point to one case in which the Government have abused their great powers under the War Precautions Act. This Bill is necessary, and it is wanted without a day's delay. Speaking from my experience of the administration of one part of the emergency laws - the Trading with the Enemy Act, which dovetails with the War Precautions Act - I say that we have found the powers conferred on us inadequate in many particulars; and we are now brought to a standstill in some most important matters because we lack the power to deal with circumstances that have arisen.


Mr Brennan - What about the death penalty? That is new.


Mr HUGHES - Death is no new thing, and the death penalty is not new. If a man deserves death, why should he not get his deserts ? I make no apology for the introduction of the death penalty. There are some acts for which death is richly deserved - where, indeed, death is but an evasion of the responsibility and rightful consequences of an act of national treachery. I make no apology for inserting that penalty; but I do say that justice shall be done, not only in cases where the death penalty is involved, but even in the least offences. As bitter a wrong can be done a man in respect of the least offence as in respect of the greatest. Under this Bill the Government will use its great powers without regard to persons; the guilty will be punished, but- justice will be done to every man. As for the monstrous supposition that because a man happens to be an officer he is thereby removed from all risk of punishment, such a thing merely requires stating' to carry its own refutation with it. I hope that this measure will pass without further discussion, and I can only assure the House that, in regard to any penalty whatever imposed under the military law by court martial, the sentence, before its execution, will come before me as the representative of the civil law.


Dr MALONEY (MELBOURNE, VICTORIA) - Is the civil power dominant over the military power?


Mr HUGHES - The civil power will remain dominant. Under section 99 of the Defence Act, all sentences are referred to me for record. But I give this House the same assurance that I gave on a former occasion, that before any sentence is carried out under this Act by court martial it will come before me, and be subject to review by me. It will not necessarily be reviewed, but it can be reviewed by me, and the influence of honorable members) as representatives of the people, will be no less under these laws than under any other.


Mr Riley - I ask the AttorneyGeneral if he will adjourn the debate, because many honorable, members wish to speak, and some of us desire to catch our trains this afternoon.


Mr HUGHES - The Government wish to have the Bill passed to-day.







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