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Wednesday, 28 April 1915


Sir ROBERT BEST (Kooyong) . - The Assistant Minister of Defence is distinctly right in saying that in some respects we are at present under military law, and that the Bill now before us will afford certain civilian rights in respect of it which do not now exist. The present law provides that the regulations which may be made under it may authorize -

The trial by courts martial and punishment of persons contravening any of the provisions of such regulations designed -

(a)   to prevent persons communicating with the enemy, or obtaining information for that purpose or for any purpose calculated to jeopardize the success of the operations of any of His Majesty's forces in Australia or elsewhere, or to assist the enemy .... in like manner as if such persons were members of the Military Forces of the Commonwealth and had on active service committed an offence under section 5 of the Army Act.

I have not attempted to quote the whole of the present law, but only portion, by way of example. It will thus be seen that under the existing law, and the regulations made by virtue of it, civilians are liable to the same penalties and to be tried by the same tribunal as are those who are subject in ordinary circumstances to military law. To that extent, therefore, my honorable friend is quite correct. Much relief is being granted, however, by subclause 6 of clause 4 of this Bill. The Hill goes still further than the existing law, but so far as it does exceed the existing law a military tribunal would not apply to civilians. Sub-clause 6 of clause 4 gives to civilians the option of demanding to be tried by a civil Court. It provides that -

Where a person being a British subject but not being a person subject to the Naval Discipline Act or to military law is alleged to be guilty of any offence against this

Act which is triable by court martial, he shall be entitled, within six clear days from the time when the general nature of the charge is communicated to him, to claim that he be tried by a civil court instead of being tried by court martial, and where such a claim is made, the offence shall not be tried by court martial.

That undoubtedly gives distinct relief from the stringency of the present law in regard to civilians.


Mr Jensen - So far as offences under the War Precautions Act are concerned, we are absolutely under military law at the present time.


Sir ROBERT BEST - That is so to the limited extent to which I have referred, and the Government are to be congratulated on the terms of sub-clause 6 of clause 4, which I have just read. I am prepared to follow the Government in supporting the Bill as it stands, believing that its terms are wide, but not in the circumstances excessive. It is difficult, for two reasons, to understand the hubbub that has arisen over this clause. In the first place, the most extreme powers in other directions have readily been granted to the Government merely because they have asked for them and urged that they are necessary. I hold it to be the duty of the whole Parliament to be guided by the Government in a time of emergency such as the present undoubtedly is. If the Government say that these extreme powers are necessary, we must support them. Similar powers, with the exception of the small provision to which exception is now being taken in certain quarters, have already been granted, without any hesitation, to the Government. Some of the powers with which they have been armed are more extreme than is that against which some honorable members are now protesting. In the next place, it is bitterly complained that this provision means the suspension of trial by jury. That is by no means a new situation. The suspension of trial °y Jury is incidental to all great emergencies such as the present, and, whilst it has been urged by some of my honorable friends opposite that it is not shown that emergencies have arisen to justify the insertion of sub-clause 8, I would emphasize the point that we have to consider, not what has already arisen, but what is likely to arise. If the Government are to be trusted in regard to the extreme powers which have been readily granted to them, I ask why should they not be trusted with this power, more especially since we have their assurance that it will be exercised only in the most extreme circumstances? Another point is that, whether it be embodied in the Bill or not, the Government have the inherent or emergency power to proclaim martial law subject to subsequent indemnity.


Mr LAIRD SMITH (DENISON, TASMANIA) - But they would have to take the responsibility of such a proclamation.


Sir ROBERT BEST - And they would be unworthy of their positions if they were not prepared to accept it, as other Governments have done. In asking for this power, therefore, it will be seen that they are not seeking for anything that is new or extreme. They are asking merely for something that may become necessary in circumstances which at the present moment cannot be exactly foreseen.


Mr LAIRD SMITH (DENISON, TASMANIA) - If they have this inherent power, quite apart from the Bill, why go to the trouble of providing for it in the Bill itself ?


Sir ROBERT BEST - I think that the Government are acting fairly to Parliament in coming forward as they do with this proposal. They are following the House of Lords in the introduction of this measure of relief, but they have also to follow the British Parliament in providing that the granting of that relief shall not act detrimentally where they find that such an emergency has arisen as to render it unwise to permit the exercise of the option for which subclause 6 provides. I urge that there is nothing novel in what the Government are asking, and that there is, therefore, really no cause for any heat. The honorable member for Bourke spoke with the most intense and unreasonable heat. He displayed a degree of warmth which I should be sorry to see coming from this side in the discussion of a non-party measure, such as this undoubtedly is, having for its object the safety of the Commonwealth. So far as it is concerned, we are all united in the common interest, in securing the common safety. These are times when we have to trust the Government. They have come down to the House, and have said frankly that, in their opinion, it is wise that this power should be given them. There is no justification, therefore, for refusing their request. We should yield to the suggestion of the Government, and grant them a power which they declare to be essential to the safety of the Commonwealth.







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