I move that the Bill be now read a Second Time. As this is the annual Defence Forces Bill, provision is made at Section 2 that the Defence Forces (Temporary Provisions) Acts will continue in force for another year, that is, up to the 31st March, 1942. Several other provisions have been found necessary or desirable during the past 12 months, and I shall explain each of them as briefly as possible.
Since the commencement of the present emergency, a number of officers have been promoted to acting higher rank. In fact, the vast majority of promotions effected during the emergency have, for obvious reasons, been on an acting basis. It is, of course, inherent in acting promotion in any walk of life that the promoted person must expect to revert to his ordinary state when the necessity for his retention in the higher position ceases to exist or if he fails to give satisfaction in the higher post, and officers of the Defence Forces who have received acting promotion are well aware that they are liable to reversion at any time. Acting promotions were, however, in normal times of such rare occurrence that they have never been specifically mentioned in legislation, although there is, of course, perfectly adequate provision of a general nature for promotion, whether substantive or acting. The question of reversion from acting higher rank has not heretofore been dealt with by legislation but has been covered by Army Regulations. In view, however, of the extent to which acting promotions are now occurring, it is considered desirable to make the matter quite clear, and specific provision is accordingly made for such promotions and for reversions therefrom at Section 4 of the present Bill which replaces the existing legislation regarding the promotion of officers.
The provision in question is being made retrospective as from the commencement of the emergency. Similar provision in regard to non-commissioned personnel is made at Section 5. Section 3 defines a non-commissioned officer as meaning a person holding any of the non-commissioned ranks or grades of marine rating set out in the No. 2 Act of 1940 except those of private and seaman.
Section 6 provides that deductions may be made from a soldier's pay to meet any penalties, damages, compensation or costs awarded by a civil court before which he has been charged with an offence. In that connection, there has recently been a number of cases where irresponsible soldiers have damaged civilian property in such ways as by breaking windows. If these men were tried by courtmartial or by their commanding officers, it would be possible, under existing legislation, to deduct compensation in respect of the damage from their pay. It is considered, however, that the general principle regulating the exercise of the concurrent jurisdiction of courtsmartial and civil courts in dealing with civil offences should not be departed from. It has always been agreed that where a soldier goes outside military quarters and injures civilians in person or property, the civil courts should deal with him. It would not accord with the legal conception of the Army vis-a-vis the civil population, ever since the first Defence Forces Act was passed, that civilians seriously injured in person or property should have to seek their redress from courts composed exclusively of military. As the Acts stand, however, damages or compensation awarded by a civil court cannot be recovered from a soldier's pay. Section 6 of the present Bill is, therefore, desirable.
Last year's Act provided that no soldier or reservist would be entitled to be discharged during a period of emergency. It has been found administratively desirable to embody in legislation the method adopted in practice of fixing the status of men retained in service under that provision when their ordinary engagements have expired. This is now being done at Section 7 of the present Bill, which retains last year's provision and also, as a matter of clarification, suspends the operation of certain provisions of earlier Acts relating to the same subject.
A section similar to Section 8 of the present Bill was included in last year's Act but applied only to officers of the Forces. In view of the large number of Reserve officers now out on permanent service, it is considered desirable that such officers should be similarly covered. The new section, which replaces the previous one, provides accordingly.
Section 9 amends Section 17 of the No. 2 Act of 1940, which relates to commissioned ranks in the Defence Forces. To place beyond any doubt the fact that marine officers will come within the scope of the Defence Forces (Pensions) Scheme, which mentions military ranks only, a new sub-section (3) is being inserted. Apart from the reference to the scheme, the subsection is a repetition of the existing sub-section (3) of Section 17 of the No. 2 Act of 1940. Two new sub-sections—(4) and (5)—are also being added to enable military officers appointed to the Marine Service to be given marine ranks and vice versa. These two sub-sections are already contained in the Emergency Powers (No. 97) Order, 1941, but are now being enacted in permanent form.
Sub-section (4) was rendered necessary by the fact that certain officers of the Defence Forces, who were not specially commissioned to the Marine Service but were transferred to it from the military side, could not otherwise have been given the appropriate marine ranks. The opposite might also hold and hence the desirability of sub-section (5).
Section 18 of the No. 2 Act of 1940 which relates to non-commissioned ranks and ratings is being similarly amended. The new sub-sections (4) and (5) apply the pensions scheme to ranks and ratings other than the military ranks at present specifically mentioned therein. The new sub-sections (7), (8), (9) and (10) provide for transfer from military ranks to marine ranks and ratings and vice versa.
Section 57 of the No. 2 Act of 1940 and Section 8 of the Act of 1941 conferred the right of restoration to their former civil employment on temporary officers, soldiers who enlisted for the duration of the emergency and reserve officers and men called out on permanent service. These sections were inserted in the Acts to protect the interests of persons giving good and loyal service to the State and the questions have been under consideration as to whether members of the categories mentioned should, in fact, enjoy the State's protection if they fail to give good and loyal service; and whether civilian employers should be forced to take back into their service persons who are dismissed or discharged from the Defence Forces because they have rendered themselves unsuitable for retention therein.
As a result of such consideration, it is now proposed that the following classes should be deprived of the right of restoration to their former civil employment on ceasing to be members of the Defence Forces:—
(a) officers dismissed with ignominy; dismissed by sentence of courtmartial or dismissed by the President;
(b) soldiers discharged with ignominy; discharged by sentence of courtmartial; or discharged for having wilfully made a false answer on attestation, for misconduct or on conviction by the civil powers;
(c) unapprehended deserters.
Many other types of cases were considered, but it was eventually decided to confine the proposal to those types which I have mentioned, and I think Deputies will agree that the proposal is a reasonable one in relation to such cases.
Officers are dismissed only for very serious offences. If an officer proves himself so unfit for retention in military service as to merit dismissal, he has failed in his duty to give loyal and faithful service and has forfeited his right to the protection of the State. In addition, it would be unreasonable to force an outside employer to take him back into his service. The same arguments apply to soldiers discharged with ignominy or by sentence of courtmartial.
As regards the other categories, a soldier who makes a wilfully false answer on attestation, necessitating his discharge when that fact is discovered, obtains a contract with the State by false pretences and puts the State to considerable expense for pay, maintenance, equipment and training. He does not, therefore, merit State protection. Deputies will understand that a soldier is not normally discharged for a relatively harmless matter such as giving a wrong age or address on attestation. Discharge occurs only in respect of some serious misstatement.
The position is similar as regards discharge for misconduct. A record of discharge for misconduct on a man's discharge papers has such an effect on his prospects in civilian life that this reason for discharge is reserved for the most serious cases. It would be unjust, therefore, to force a civilian employer to employ a man discharged on that ground. Again, in connection with discharge as a result of conviction by the civil power, a man is not discharged because of conviction of what I may term a "noncriminal" offence, such as, for instance, breach of traffic regulations. Generally some serious offence is involved so that the arguments already mentioned again apply.
Deputies will note that unapprehended deserters have been included —these are the persons mentioned in Section 11 as persons to whom Section 119 of the Principal Act applies—but that there is no reference to apprehended deserters. The position of the latter class is that, on being apprehended, deserters are tried by courtmartial and generally sentenced to a term of detention. They are not, however, on completion of that sentence, as a rule discharged from the Defence Forces, but are required to complete their Army engagement with a period equal to the period of absence and detention added. It is considered that a soldier who purges his offence and completes his Army engagement, should not be deprived of the right of restoration to civilian employment. If, however, the circumstances of his desertion are such that, on completion of the sentence of detention, it is considered undesirable to retain him in Army service, he is discharged "for misconduct" and he would thus, under the present proposal, forfeit his right.
I have thought it well to deal with Sections 11 and 12 in some detail, so as to leave Deputies satisfied that the proposals which they embody are, in all the circumstances, fair and reasonable. Before leaving the subject, I should like to point out that these sections will not prevent an employer from reinstating a former employee, if he desires to do so, but will only remove the right of reinstatement. If a man is a good man at his work, his employer will probably take him back, provided his offence has not been of a definitely criminal nature. The sections will, therefore, in practice affect the undesirable character rather than the decent man, and it is with that object of course, that they are inserted. As I mentioned already, we could have gone much further, but there would have been greater danger of the fundamentally decent man finding himself, through some purely military offence, affected by the provisions of the sections.
As regards Section 13, it is the experience of the military authorities that the majority of persons arrested by them as suspected deserters admit that they are deserters and nothing is gained, therefore, by bringing them before a district justice or peace commissioner as prescribed in Section 57 of the No. 2 Act of 1940. It is felt that in the relatively few cases where arrested persons deny that they are deserters, they should have the right of being brought before a district justice or peace commissioner. This procedure will ensure against miscarriage of justice and will, in addition, obviate the possibility of subsequent actions for wrongful imprisonment.
Sections 1, 14 and 15 are self-explanatory.
