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Friday, 16 August 1912

Senator PEARCE (Western AustraliaMinister of Defence) . - Suppose that action is taken under the Act against a parent, a monetary penalty can be recovered in two ways, namely, by imprisonment or by execution. We do not want to put the man in gaol, and he may have no goods. The third alternative is to garnishee his wages or salary; and in order to do that it is necessary to have this power to proceed in a Civil Court.

Senator Lt Colonel Sir Albert Gould - Does this apply to the parent?

Senator PEARCE - It does not say that it applies to the parent, but that is what is contemplated. It applies to all those who are liable under paragraphs a and b of section 125.

Senator Sir Josiah Symon - Paragraphs a and b apply to lads in the Junior Cadets.

This provision is not extended to any other section.

Senator PEARCE - Assuming that it does apply to Junior Cadets, we want power to recover the penalty.

Senator Sir Josiah Symon - Surely the Commonwealth does not attach the 10s. a week which a lad of twelve years of age receives ?

Senator PEARCE - Suppose that the Court fines a cadet because of his contumacy, we cannot distrain upon his goods ; we do not want to send him to gaol, and under this provision we can attach his wages or salary.

Senator Sir JOSIAHSYMON (South Australia) [12.41]. - This is going a very long way for a very small result. If the object is to eventually secure a garnishee order and an attachment on the petty wages of a lad, I think it is a blemish on these proceedings. It ought to arouse a good deal of resentment amongst parents and cadets. Without something more in the Act an action cannot be brought, because it does not create a debt. We all know that persons under the age of twenty-one years are not liable to be sued on debts or contracts. A penalty is not a tort or a wrong in that sense. To say the very least of it it is extremely doubtful whether any such proceedings can be taken unless we add some words to declare the penalty to be a debt recoverable against the person upon whom it was imposed, just as though he were twenty-One years of age.

Senator Lt.-Colonel Sir ALBERTGOULD (New South Wales) [12.42].- It is undesirable to make a pecuniary penalty against a lad between the ages of twelve and eighteen years recoverable as a debt. We have already determined that these youths shall not be liable to be sent to gaol if they do not attend their drills, but shall be sent to a place of military detention. I asked the Minister to tell me what would happen in the event of a cadet being allowed to go home at night, and refusing to return next day, really treating the order of the Court with contempt, and he told me that the lad could be prosecuted.

Senator Pearce - Arrested.

Senator Lt Colonel Sir ALBERT GOULD - He could be arrested and taken to the Court, but the Court could not send him to gaol.

Senator Pearce - Why not?

Senator Lt Colonel Sir ALBERT GOULD .- I understand the Minister to say that he did not contemplate that.

Senator Pearce - They could do so then.

Senator Lt Colonel Sir ALBERT GOULD - That obviates the difficulty which I saw. It is perfectly clear that if a penalty is imposed it can only be recovered by virtue of this proposed subsection, and it will be rather undesirable to get, as the Minister suggested, a garnishee order in order to attach the lad's few shillings a week.

Senator Clemons - The lad may be earning 40s. a week.

Senator Lt Colonel Sir ALBERT GOULD - The object has been, as far as possible, not to create dissatisfaction or difficulty in administering the Act. It is perfectly clear to my mind that if a lad is contumacious, and will not attend to the order of the Court, and put in the drills, there is no alternative but to imprison him for the offence. It ought to be clearly understood by the people that, while Parliament is desirous that every possible consideration shall be paid to those who have to serve, the law is not to be laughed at, and those who insist upon disobeying should lie punished after every reasonable means has been observed to insure the due fulfilment by them of the duties imposed by the law.

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