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Friday, 16 August 1912

The CHAIRMAN - I direct the attention of the honorable senator to the fact that he has repeatedly made use of the same statement. The clause deals with a matter of administration, and is of general application. I would ask him whether he does not think that he is stressing too much one particular case.

Senator MILLEN - If an injustice is being done, the matter cannot be stressed too much. The Minister brought this case forward as one of the reasons for the introduction of this new clause, and, with all respect to you, sir, I think I am entitled to discuss the bearing which it may have upon the case brought forward by the Minister as a justification for it. I can quite understand the honorable senator proposing to follow the advice pressed upon him, as we all know him to be a busy Minister; but I say that statements have been made here to-day which will justify him in reviewing the whole position. When viewed from different stand-points, the same matters wear different aspects, and I ask Senator Pearce to again consider the position in which he is placed. A little time ago he was prepared to make this appointment, and he then discovered a defect in the law. He proposes now to remedy that defect. But what for? Surely it is in order that he may carry out the intention at which he had previously arrived.

Senator Pearce - More than that; it is to validate what has been done in the past as well.

Senator MILLEN - Exactly. It is necessary to validate what was done in connexion with officers who were fortunate enough to secure their appointments. But this other officer who has been referred to would have secured his appointment except for the influence which held him back.

Senator Guthrie - Except for a legal quibble.

Senator MILLEN - No. Before the legal quibble was discovered, there was delay in the making of this appointment. It was held back to give a further chance to a man who had failed to qualify.

Senator Pearce - As far as I know, that is incorrect.

Senator MILLEN - I accept the Minister's statement on that point ; but I can inform him that there was a good deal of correspondence, extending over three months, and probably it never reached head-quarters in Sydney. An appointment of a qualified officer, which should have been made long ago, was kept back for one reason or another, in order to give his competitor a further chance ; and the Minister is now proposing, not to carry out the original intention, but to use this Bill as an excuse for tying the matter up to give a non-qualified man a further chance in competition with a man who has been qualified for many months.

Senator Sir JOSIAHSYMON (South Australia) [11.52]- - This discussion has been valuable to many of us who are not familiar with the details of military administration. It has revealed an extraordinary situation; and I am sure honorable senators would like to assist in extricating the Minister from what is undoubtedly a difficult and delicate position. As the debate has proceeded, I have come to the conclusion that .the p'oint of view just put with so much force by Senator Millen is the true point of view from which we ought to approach the consideration of the amendment of the law now proposed. Its object is to remove a defect 'n the law under which these officers were examined for promotion. Three officers, who passed examinations which have turned out to be, in some respects, irregular, were actually appointed. The effect of this Bil), so far as they are concerned, will be, as it ought to be, to confirm their appointments. Nothing has been said on this side in opposition to that. The Minister, in dealing with a very complicated system, which, perhaps, no one else has more thoroughly mastered, has committed an unintentional error which any one might commit, and which is entirely excusable, because it arose from an incorrect interpretation of the law by his officers. At the time the discovery of the defect in the law was made, as the result of an objection taken by an unsuccessful candidate, a recommendation existed for the promotion of a particular officer who was, subject to the defect in the law, considered to be absolutely qualified. The Minister tells us that the appointment of this officer would have been made but for this interposition on the part of an unsuccessful candidate. The effect, in all fairness and justice, ought simply to be to suspend the consideration of the recommendation until the defect in the law is remedied, in order that it may subsequently be given effect to. I venture to say that it is not a mere matter of administration, as suggested by the Chairman, which arises under this clause, but a question whether an injustice may not be done. We should hesitate about passing a clause which may have that effect. This Bill certainly ought not to be used in order to bring, as a competitor against an officer who has already been recommended for a position, a man who has failed twice in the examinations necessary for promotion, and who, apparently, is to be given a third opportunity to qualify. I think that the amendment of the law had far better be withheld, until the Minister is in a position to tell us, as I think his sense of justice would induce him to do, that the recommendation which has been in suspense will be given effect immediately the defect in the law is remedied. The Minister has properly put the obverse to that, and says that he might be accused of having sought to pass legislation for the benefit of a particular individual.

Senator Clemons - That could not be fairly brought against him.

Senator Pearce - I think that that would be said.

Senator Sir JOSIAH SYMON - I do not think so at all. The Minister has one object with two results. The object is to remove a defect in the law. The two results are: first, to confirm those things which were irregularly under the law as it stands; and, second, to enable the Minister to give effect legally to a recommendation for promotion in favour of an officer who is absolutely qualified. And I say that that ought to be done in justice and fairness, without bringing into competition with him an officer who has tried twice to secure qualification, and has failed on both occasions. We ought to look at the amendment from the point of view of the justice or injustice which it may work. 1 think it will work absolute justice and fair play, if applied, as I have respectfully suggested; but it will work the grossest injustice if it is applied with the result of cancelling a recommendation which is only in suspense, and enabling an unqualified person to come into competition with the officer recommended, for promotion.

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