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Friday, 16 August 1912

Senator PEARCE (Western AustraliaMinister of Defence) . - I move -

That the amendment be agreed to.

The necessity for this amendment cannot be found so well by reference to the Act which it seeks to amend as by a statement of the reasons underlying it. Section 21a reads -

1.   An officer of the Military Forces, other than an officer of the Cadets, shall not be promoted, except probationally, to any rank higher than that of captain until he has passed, as prescribed, a course of practical and theoretical instruction by the members of the General Staff to perfect him in the practice of his own arm. of the Forces, and to accustom him to the usesand possibilities of the other arms.

2.   An officer of the Military . Forces shall not be promoted to any rank higher than that of major until he has passed, as prescribed, a course of instruction by the members of the General Stall, during which he shows himself fitted to command in the field a force of allarms.

3.   This section shall not apply to officers of the Medical, Veterinary, Ordnance, and otherDepartmental Services.

The facts are these : A number of officershad gone up for examination under conditions prescribed prior to the passing of theAct of 1 9 10. They had passed the prescribed course then laid down under the regulations, but for various reasons had not been promoted. Thus, a man might pass his examination and fulfil all the conditions ; but a vacancy might not exist, and he would therefore have to wait before he could be promoted. A number of officers, as I have said, had passed the prescribed examination and fulfilled the conditions. Then the Act was amended, and a new prescribed course came into existence. The question came up very shortly afterwards, when vacancies arose, as to the officers whohad passed the prescribed course under the old Act, but who had not passed the prescribed course under the new Act. The Chief of General Staff, the late Sir John Hoad, brought the question before me, and recommended that a regulation should bepassed accepting the passing under the old Act as an equivalent of passing under the new. That is to say, the regulation would legalize and recognise the former pass as a pass under the new Act.

Senator Millen - It would respect existing rights.

Senator PEARCE - Yes. I approved of the regulation, and under it a number of officers - I think about ten' - have been promoted from the rank of major tolieutenantcolonel. That procedure was believed to be legal, and the Department continued to think so. There remain only about four officers holding the pass under those conditions who have not been promoted. A case arose in New South Walesrecently where two officers were competingfor the command of a regiment. I do not. desire to mention names, but I can give them to honorable senators if desired. One of" the two officers held the pass under the old Act. The other officer had gone up for his pass under the new Act, but had failed.

The Military Board recommended the officer who held the pass under the old Act. The other officer happened to be a solicitor, and he challenged the recommendation, on the ground that the pass held by his rival was not in conformity with the Act.

Senator Guthrie - The one who had failed challenged the recommendation?

Senator PEARCE - Yes. He had an opportunity of going up for examination again.

Senator Millen - Had he not failed more than once?

Senator PEARCE - I believe he had. But this was the first time the position had been challenged. I felt that it was a serious matter, which ought to be cleared up, and referred it to the Crown Solicitor, who gave it as his opinion that the Act did not give us power to recognise the pass under the prescribed course under the old. Act; in other words, that the action that had been taken by me, under the advice of the Chief of General Staff, was ultra vires. This amendment of the law is brought forward in order to recognise as legal the promotions that have been made under the method I have described. The matter ought to be set at rest. I give the Committee the undertaking that the case of the two officers whom I have mentioned will not be affected, because I have decided that the officer who has previously failed shall be given an opportunity of go;ng up for his examination again under the new Act. It is true that he has already had an opportunity and has failed, but I think that under the circumstances it is fair that he should be given another opportunity, and he is going up for examination again at an early date. Should he pass, it will be for the Military Board to recommend as to which of the two officers shall hold the command of the regiment in question.

Senator Clemons - Is there any limitation as to an officer going up for examination again?

Senator PEARCE - He can go up -again.

Senator Keating - Does the Minister mean to say that the appointment will not be made until this officer has had another opportunity ?

Senator PEARCE - Yes ; it will not be :made until he has had his opportunity.

Senator Millen - In the meantime the Minister holds up the man who has been baiting ?

Senator PEARCE - According to the Crown Solicitor's opinion, he is .not qualified, but under this clause he will be qualified. I think it would be unfair to regard him as qualified under present circumstances. It would be passing an Act of Parliament to give him an advantage which the Crown Solicitor advises he has not at present. The other promotions were made in ignorance. We did not know that we were transgressing the law. Our eyes having been opened. I do not think that we should make the promotion until the other officer has had his opportunity, and then the Military Board, on the advice of the Inspector-General, will have the right to decide which of these officers shall hold the command.

Senator Clemons - The Minister surely has not been accused of harsh treatment to this officer who has failed?

Senator PEARCE - No, there is no accusation of harsh treatment.

Senator Clemons - I hope the Minister will not be accused of treating harshly the officer who has failed. He has been treated with great leniency.

Senator PEARCE - There has been no accusation of the kind.

Senator Millen - The man who has been treated harshly is the one who has been waiting for promotion which has been accorded to others in a similar position.

Senator PEARCE - No, that is not quite correct.

Senator Sir Josiah Symon - The point is whether this amendment of the law is intended to meet a special case or is meant for general application.

Senator PEARCE - It is meant for general application - that is to say, to ratify what has been done, and to enable us to recognise those who have passed the prescribed examination under the old Act. Of course, it is not an easy situation. It is not satisfactory by any means. I am asking the Committee' to make this alteration in the law on the one hand to legalize what has been done, and, on the other hand, to recognise those, who hold passes under the old Act. As I have said, they do not exceed four, but those officers have not had an opportunity of promotion, and ought to be in the same position as others in regard to their eligibility.

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