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Friday, 16 August 1912

Senator KEATING (Tasmania) . - Like Senator Clemons, I know nothing of the circumstances of this case, or the names of the parties affected. On the statement of the case which has been made to the Minister I certainly think that he is following the right course. I should be very sorry, indeed, to see him, or any other Minister, fully conscious of the fact that he was going to make an invalid appointment, deliberately do so in anticipation of a validating Bill being passed. The position appears to be that these two competitive applicants had their applications under consideration by the Military board, and that the Board decided to recommend one as against the other, apparently on the sole ground that one had qualified for appointment and the other had not. The latter, whose nonqualification is undoubted, raised the legal objection that the applicant who had received the recommendation had been recommended on the ground that he was qualified, whereas, in the opinion of the objector, he was not legally qualified. For the first time a suggestion came before the Department that what had been deemed a qualification was not so in law. The opinion of the Crown law authorities was taken, and it coincided with that of the objector, and at once the Department found that there were a number of appointments which had been made on what were assumed to be qualifications, and which were consequently invalid. The appointments of these men stand in a totally different position from the case of a man whose appointment is recommended and under consideration. This validating legislation confirms them in their positions. He is in a totally different position from those who have been acting in the offices to which they were appointed, although invalidly. I think that there is a clear distinction between the two kinds of cases. Immediately this validating legislation is passed for the first time the recommended applicant will become qualified for appointment, and inasmuch as the other officer offered himself for examination and raised the objection to an appointment, I think that the Minister is entitled to consider his position.

Senator Guthrie - An inefficient man.

Senator KEATING - Not necessarily. It may be that when this man presented himself for examination he entertained the opinion that the passing of the previous examination was not a qualification, and would not give the other competitor any advantage over him when it came to the test. Any way, as soon as' this legislation is passed, the recommended competitor will become qualified for appointment, but there is to be no appointment made until the other candidate has had an opportunity to present himself for examination. Assuming that he qualifies, it will not follow, as a matter of course, that he will be appointed to the position.

Senator Millen - I would like to make you a wager about it.

Senator KEATING - I am dealing with the case in the abstract, and just on the facts submitted by the Minister. If the non-qualified candidate qualifies at a subsequent examination it will remain for the Military Board to make a recommendation. They will have the opportunity, after considering all the circumstances, of determining whether he is the better qualified of the two. Previously they could not consider his application at all.

Senator Guthrie - Now you are shutting out the other man.

Senator KEATING - He is not being shut out, but is being made by the Bill qualified for appointment.

Senator Millen - Why should he not be appointed when the Bill becomes law?

Senator Pearce - He will be considered.

Senator MILLEN(New South Wales) [11.43J. - The Minister of Defence made a statement just now that, but for the discovery of this defect in the law, he would have made the appointment which the Military Board recommended.

Senator Pearce - Yes.

Senator MILLEN - If that is so, 1 want to know why the Minister should not, when the difficulty is removed by the passage of this Bill, stay his hand then?

Senator Pearce - If the Military Board make a recommendation I will accept it.

Senator MILLEN - We are coming now a little nearer to the point which I have been more than suggesting. The Minister said a little while ago that he would have made the appointment some time since, but for the timely discovery of a defect in the law. Was he doing that himself, or as the result of a recommendation of the Military Board?

Senator Pearce - As a result of a recommendation of the Board.

Senator MILLEN - Then the Military Board recommended as fit for this position this particular officer, and the Minister was on the eve of making the appointment when his attention was drawn to a defect in the law.

Senator Pearce - By the other claimant.

Senator MILLEN - We are now making the defect good, and the moment the GovernorGeneral's signature is given to the Bill the Minister will be in a legal position to do that which a little while ago he thought was right, and which he would have done but for the discovery of the defect. What has happened to change his mind in the matter?

Senator Pearce - Nothing.

Senator MILLEN - If that is so, why is not the Minister prepared to carry out what he intended to do?

Senator Pearce - I say that if the Military Board recommend the same man as they did before I will appoint him.

Senator MILLEN - That is not what the Minister said just now. His statement then was that he would hold up the appointment until the non-qualified man had a further chance of qualifying

Senator Pearce - I say it again.

Senator MILLEN - The Minister is making two statements. If, to-morrow, the Bill becomes law, and the Military Board repeats its recommendation, is the Minister going to act upon it, or will he carry out his other statement - to give the nonqualified officer a chance to qualify?

Senator Pearce - Yes.

Senator MILLEN - Which is the Minister going to do?

Senator Pearce - Both.

Senator MILLEN - The Minister cannot appoint one man to the position tomorrow, and at the same time keep it open in order to give the non-qualified man a chance to qualify.

Senator Pearce - I shall do what I have stated.

Senator MILLEN - Then, if the Military Board recommend that the matter should be tied up for another six months to give this unqualified man another chance to qualify, the Minister would follow that recommendation.

Senator Pearce - No, I should not do anything of the kind.

Senator MILLEN - The honorable senator is 011 the horns of a dilemma. He said a little while ago that he was satisfied that this major was qualified for promotion, and that he was about to make the appointment. Surely the reasons which induced the honorable senator to consent to make the appointment, which was frustrated only by the discovery of a defect in the law, must operate to induce him to go on and make the appointment the moment the defect in the law is remedied. The position almost suggests that the opportunity to remedy the defect in the law is being seized upon as an excuse to give an officer who failed twice to qualify for promotion a further opportunity to qualify for the position in competition with an officer who has previously qualified.

Senator Pearce - " Suspicion ever haunts the guilty mind."

Senator MILLEN - I cannot be said to be guilty of anything in connexion with this matter. Assuming that the defect in the law is remedied, what is there to pre vent the Minister giving effect to a recommendation upon which he would have acted but for the defect in the law ? I cannot too strongly emphasize the fact that we have been informe'd that the Minister satisfied himself either directly or by reports from the proper officers that a particular gentleman was qualified for the position, and he was on the point of putting his name to a paper authorizing the appointment, when suddenly a legal point was taken that there was a defect in the law. The Minister proposes, by this Bill, to remedy that defect, and I ask what ought to be the natural and just consequence when the defect is remedied? Surely it should be for the Minister' to give effect to the decision at which he had previously arrived.

Senator Pearce - Then the honorable senator would get up and say that we had passed an Act of Parliament, in order to put into the position one , if our favourites.

Senator MILLEN - It appears to be evident that we are asked to pass an Act of Parliament to keep out some one who is not liked by some of the honorable senator's officers. The Minister talked of suspicion just now, but he has himself suggested a suspicion that the matter is to be held up to give an officer, who has failed twice, a further chance to qualify for this position.

Senator Pearce - The honorable senator is not in order in imputing improper motives.

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