The purpose of the Bill is to provide permanent legislation in relation to the defence of the State and the Defence Forces. As Senators are aware, the existing statutory provisions governing these matters are contained in the various Defence Forces (Temporary Provisions) Acts, 1923 to 1954. While it may be said that these Acts operated successfully, it was very difficult from the administrative standpoint to have to deal with a large number of Acts containing many provisions of an amending nature. These Acts include also many provisions requiring amendments to bring them into line with modern conceptions and practice.
An effort has been made in the present Bill to retain all the provisions of the existing Acts, amended and modified where necessary, that are considered suitable, in the light of experience, for a permanent measure such as this. The Bill also includes a number of new provisions designed to improve the position of members of the Defence Forces and to provide much-needed additional powers for defence purposes. Some of the provisions enacted during the last emergency, for example, those relating to the precedence of military traffic on transport undertakings during an emergency, are considered to be more suitable for inclusion in any future emergency legislation that may be necessary, and are, accordingly, omitted from the Bill.
The Bill is divided into 12 parts and there are ten schedules. The more important provisions of Part I relate to the date on which the Act will come into operation; to the declaration of a state of emergency and to active service. Many new regulations, changes in existing regulations and other administrative arrangements consequent on the provisions of the Act will require to be completed before it can be brought into operation. The operative date must, accordingly, be left to be fixed by the Minister for Defence when these matters have been dealt with.
Power is taken in Section 4 for the declaration by the Government of a state of emergency and for the revocation of any such declaration. The state of emergency referred to in this section is in relation to defence purposes only and should not be confused with a national state of emergency under the Constitution. All that it gives power to do, apart from a few minor matters, is to declare the Defence Forces to be on active service under Section 5; to billet members of the Defence Forces in private houses or elsewhere under Section 37; to enlist men under Section 54 for the duration of the emergency, and to call out the Reserve on permanent service under Section 87. The section is similar to Section 4 of the Defence Forces (Temporary Provisions) (No. 2) Act, 1940. The circumstances in which the Defence Forces will be on active service are set out in Section 5. A similar provision is contained in existing legislation.
The provisions relating to the Council of Defence, the Chief of Staff, the Adjutant-General, the Quartermaster-General and the Judge Advocate-General are contained in Part II. The existing provisions governing the Council of Defence are contained in the Ministers and Secretaries Act, 1924. Under that Act the Minister is a member and chairman of the council. The purpose of the council under Section 11 of the Bill is to aid and counsel the Minister on all matters in relation to the business of the Department of Defence on which the Minister may consult the council. It would be anomalous that the Minister should be a member of a body advising himself as Minister. Accordingly, he will not be a member of the council provided for in the Bill.
Hitherto the maximum continuous period of office of the Chief of Staff, the Adjutant-General and the Quarter-master-General has been three years. Experience has shown such a period to be too short and provision is now being made in Section 12 for a five-year period of office. The qualifications for the post of Judge Advocate-General are set out in Section 15. A person filling that appointment must now be a practising barrister-at-law of at least ten years' standing.
Part III provides the power for the raising, maintenance and command of the Defence Forces and deals with the constitution, general organisation and military education of these forces. The Defence Forces will, as at present, be divided into a permanent force and a reserve force, each consisting of army, air and naval components. Members of the Army Nursing Service will now be members of the Permanent Defence Forces under Section 19. It is necessary to give them military status in order to ensure that, in the event of war, they would, as part of the Army Medical Corps, have the protection of the Geneva Red Cross Convention. They will not, however, be commissioned or enlisted and under Section 290, they will, for the present at least, be subject to the provisions of this Act only to the extent mentioned in that section.
Under the direction of the President—in whom the Constitution vests the supreme command—the command of the Defence Forces is exercisable by the Government, through and by the Minister, who is given power to delegate command, subject to such exceptions and limitations as he thinks fit, to officers. Existing legislation contains similar provisions.
Part III contains also a number of miscellaneous provisions, the more important of which relate to the compulsory acquisition of land for defence purposes. The need for such powers has, on occasion, been badly felt and this might be the case to an even greater degree in future, particularly if the necessity for a number of aerodromes arose. Similar powers of acquisition are given to the Minister for Industry and Commerce in the Air Navigation and Transport Act, 1936. Further new provisions on the lines of the Air Navigation and Transport Act, 1950, permit of the erection of apparatus on lands adjacent to military aerodromes and places certain restrictions on the use of such lands. These facilities are necessary to assist aircraft flying to or from the aerodromes.
The provisions in Part IV deal with the appointment or enlistment and conditions of service of the personnel of the Defence Forces. Generally speaking there is little departure from the corresponding provisions in existing legislation. Power is, however, being taken to retain men in service during the whole of a period of emergency even though they are due to be transferred to the Reserve or to be discharged during that period. This very reasonable power, which will apply only to men enlisted on or after the operative date of the Act, differs from the existing position to the extent that at present men may be retained for a period of only 12 months. A new provision is proposed in Section 88, which empowers the Minister, when so authorised by the Government, to call out reservists on permanent service for a maximum period of three months in anticipation of an emergency. Only men who have agreed in writing to this liability may, however, be called out. The intention here is to provide key-men to prepare for the general calling up of the Reserve.
The circumstances of forfeiture of pay or in which penal deductions may be made from pay are set out in detail in the existing Acts. Other deductions of a non-penal character may be made in accordance with regulations. It is now considered preferable that all these matters should be dealt with by regulations and provision is made accordingly in Section 97. The power to make such regulations is, however, circumscribed as the forfeitures and deductions to be prescribed must fall within the limits of the heads detailed in the section. In addition either House of the Oireachtas will have an opportunity of annulling any of the regulations made.
In Chapter V of Part IV, which deals with disqualifications, exemptions and privileges of the Defence Forces, the provisions of existing legislation are, to a large extent, followed. Members of the Reserve Defence Force will, in ordinary circumstances, be free to take part in political activities, but it is now proposed to prohibit participation in such activities when they are called out on permanent service, as they will then be in the same position as members of the permanent force.
If a member of the Reserve happens to be a member of a local authority when called out on permanent service, he must remain inactive during the period of permanent service, but his membership of the local authority is preserved in so far as absence from its meetings is concerned.
Under existing legislation an N.C.O. or man can appeal only up to the Adjutant-General. In Section 114 dealing with redress of wrongs, an N.C.O. or man is given the right to require the Adjutant-General to bring his complaint to the notice of the Minister, who must inquire into the complaint and give his directions thereon.
Part V, which deals with discipline, takes up a large portion of the Bill. The provisions relating to persons subject to military law are on the lines of existing legislation. The offences against military law have been drafted in such a way as to provide a code of law which will be common to all members of the Defence Forces, whether army, air or naval personnel. With a few exceptions relating principally to wartime offences, aircraft and military transport, no new matters constituting additional offences have been introduced. There is very little change from existing legislation in the provisions relating to the investigation of charges against officers and men. Additional safeguards for the accused person are contained in Section 191, which sets out the officers who are disqualified from acting as a member of or Judge-Advocate at a court-martial. An officer who has examined into or advised on the matters on which the charge is based or who sat on a court of inquiry into the subject matter of the charge or who, in an advisory capacity, dealt with the charges or the evidence to be produced or the conduct of the prosecution will not now be eligible for such membership.
Some important changes in favour of the accused or sentenced person are introduced in the provisions relating to the action to be taken following a court-martial. Confirming authorities may now substitute a lesser sentence for a sentence of death. It may be mentioned here that under Section 227 a sentence of death cannot be carried out unless and until the execution of the sentence has been approved by the Government. This will afford the Government an opportunity to advise the President, if such a course is considered desirable, to exercise his constitutional prerogative in such cases. New authorities, known as superior authorities, are proposed to review sentences passed by court-martial and confirmed. This is a new stage in the safeguards provided for persons tried by court-martial. A person undergoing punishment may now have his sentence reviewed by these authorities who have power to mitigate or suspend the sentence. There is also a further new provision which will enable petitions to be presented by or on behalf of sentenced persons in accordance with rules of procedure.
Part VI deals with the matters which are offences in relation to the Defence Forces and military property and concerns members of the public to some extent. One of the few changes introduced makes it an offence, without lawful authority, to make or attempt to make any sketch, drawing or photograph of military defence works or establishments or to trespass thereon.
In Part VII the powers and duties of the military and the public relating to manoeuvres are more specifically prescribed than in existing legislation. New provisions are introduced designed to protect the public from danger.
Power is taken in Part VIII to make bye-laws as to land used for defence purposes. The provisions of this part are mostly new. By giving control over lands affected by firing, bombing or other military exercises it will be possible to regulate the public with a view to their protection against injury.
Part IX is devoted to the Army Nursing Service. As I have already stated in my comments on Part III members of the Army Nursing Service are being given military status so that they may be protected by the Geneva Red Cross Convention. Although it is not the intention, at present, that members of the service will be subject to the provisions of the Act except to the limited extent stated in Section 290 it is, nevertheless, necessary that there should be power, which is also provided in Section 290, to extend other provisions to them in, for example, circumstances of war when they would have to be made subject to military law.
In Part X provision is made for the application of the Act to members of the Defence Forces established under the Temporary Provisions Acts. Certain rights and privileges, for example the right to which I have already referred, regarding transfer to the Reserve or discharge during a period of emergency, will be preserved for those who are members of the Defence Forces up to the operative date.
Part XI deals with the amendment and adaptation consequent on the provisions of the Act of a number of other Acts. Part XII contains the miscellaneous provisions which are on the lines of existing legislation and which are not appropriate to the other parts.
The First Schedule lists the enactments to be repealed on the operative date of the Act. The Second Schedule specifies the commissioned Army ranks and Naval ranks and the Third Schedule the Army and Naval non-commissioned ranks. Two new Naval non-commissioned ranks are proposed, namely, senior chief petty officer and senior petty officer. These correspond to the Army ranks of battalion-quartermaster-sergeant and company-quartermaster-sergeant to which there has not hitherto been corresponding Naval ranks.
The Fourth Schedule indicates the principal matters in respect of which the Minister may make regulations and the Fifth Schedule sets out the forms of commission to be issued to an officer. The Sixth to the Tenth Schedules set out the forms of oath to be taken by officers and men.
I hope that the foregoing will have given Senators a general picture of the Bill which will be helpful in their consideration of it.