I move amendment No. 174:—
In lines 48 and 49, to delete " imprisonment " and substitute " dismissal from the Defence Forces if an officer or discharge from the Defence Forces if a man ".
It is reduced here. I want to reduce it further. However, I will let it go.
I want to draw attention to a new offence put in here: " behaves with contempt towards ". That is an objectionable phrase to have in the Act. There are a hundred and one things that could be considered by a particular type of superior as behaving with contempt. Deputy McGrath mentioned a case to me recently where officers—young officers—went out of their way to be saluted. In the case of the normal officer there is not the least bit of trouble, but you could have hundreds of soldiers being charged all over the country every day with this offence of " behaving with contempt ". An officer could say: " He turned his back on me " ; or he did not stand up when he entered a room, although there would be no obligation on him to stand up.
He could be charged with something else.
I want to prevent all these charges.
" Behaves with contempt to his superior officer "—that is an offence. It may have a certain value for peace time order, but on active service there is a very quick method of dealing with matters of that nature, and I would not worry about it. In peace time I do agree with Captain Cowan that in modern times you can go rather far with that—fashions change—especially when what you want out of a soldier nowadays is to have him use his as well as his faculties for making his muscles react to the thinking of his superiors. I wonder is that phrase necessary?
We all know the fear any officer would have of bringing a charge that a man acted with contempt towards him, without being in a position to prove that he did something of a really contemptuous nature. There are a thousand and one ways in which, without opening his lips, a soldier could show absolute and utter contempt for an officer. Deputy Cowan knows as well as I do that no officer would attempt to charge a soldier with that kind of offence without having good and ample evidence to prove it.
Is not the Minister proving that it is almost futile to define this contempt ? If it goes to the limit of definition, he is bound to be caught somewhere else. I think you will come across such a humorless individual who will bring a charge like that for rather amusing reasons. I see Deputy Carter nodding his head. He also has some experience of this. I am just wondering if we are not bringing the Act into contempt by having such a phrase in it. If it is gross enough that you are able to wheel him at all for it, it is certainly going to be bad enough to be prejudicial to good order and military discipline. Our old friend would certainly catch him. Otherwise, it is a futility to put the thing in.
You will get a fellow who will behave in a way which might be considered contempt to his superior officer. That does not say that he would not be the finest soldier in the unit: who would obey every order and do everything he is told. He may have an understandable contempt for a man who happens to be his superior officer. The whole trouble there is that he does not intend to behave with contempt but his superior officer thinks it. Who is his superior officer ? His corporal. His corporal, who may not like him, is his superior officer under this section. I guarantee that if this section becomes law as it is there will be no charge so prevalent in the Army as that of behaving with contempt towards his superior officer. Every corporal who does not like a soldier will have him up for it.
Every sergeant who does not like a corporal will have him up for it. This is not a question of going before a court martial and proving it. It is a matter of bringing the soldier into the company orderly room and fining him 5/- or 10/- or imposing seven days confined to barracks, without giving him the option of going to his commanding officer. Supposing a soldier behaves, as his company commander thinks, with contempt towards him, that officer is judge, jury and witness. He is the authorised officer to deal with it. That is your trouble.
Deputy Cowan will not agree with this suggestion, I know, because it is certainly putting what is in the section in other words. Frankly I would prefer, instead of " behaves with contempt ", something like " behaves in an insubordinate manner ".
Or " who acts in a contemptuous manner "?
No. " Insubordinate manner ". We do not give two fiddle-sticks as to the contempt. It is the insubordination, the threat to discipline implied in the insubordination, that is the serious thing there. If you put in there " behaves in an insubordinate manner " it would probably be easier to bring the charge, of course.
" Contempt " is very wide. To turn your back on a man or walk away from him abruptly might come under that.
I feel that that type of conduct will certainly come within the category of conduct prejudicial to good order and military discipline, which we are providing for later. My view is that, unfortunately, we must provide for such an offence from a legal point of view, and in peace time it is an objectionable type of offence to provide for because it is too wide. Still, I see no alternative. We will have to put in something equivalent to the old Section 68, but I do not see why we should put something else of that wide and nebulous nature in as well.
I think that phrase is very wide.
It is too wide.
Especially as the same point can be met by " conduct prejudicial to good order and military discipline ". The basis of pulling him up for that is that it is prejudicial to good order and military discipline because it tends to undermine discipline and, if that is the essential nature of the offence, why bring in this special, nebulous one which will not really meet it?
Is Deputy Cowan satisfied with your suggestion ?
No, I do not think he is because mine suffers definitely from the objection that you are adding to the nebulous offences and I do not see any clear distinction between " behaving in an insubordinate manner " and " conduct prejudicial to good order and military discipline ". That is practically saying the same thing in different words and I would not like to put in more than one section.
I would be afraid that a section like this would be used every day by every soldier who just happened to be senior to the next fellow. Take ordinary life in a unit. Instructions come down from the battalion commander. The company officer says: " That So-and-so of a battalion commander has sent me these instructions. Look at them!" They do not all or always regard their superiors as saints. They talk very bluntly about them in their own circles. They say pretty blunt things about their superior officers from time to time and this might be considered as behaving with contempt towards them. That does not say that they are insubordinate or do not carry out their orders. It would be a dreadful source of charges in the Army and might lead to pimping and spying and reporting what was said about a superior.
In Section 167 it is provided that every person subject to military law who commits any act, conduct, disorder or neglect to the prejudice of good order and discipline is guilty of an offence against military law. Contempt of an officer is only just one conceivable way of being guilty of conduct to the prejudice of good order and military discipline, as is here provided. As a matter of fact that is the whole guts of the offence. I would agree with Deputy Cowan that it is unnecessary to put the proposed words in there because we all know what happened in the old days of the Army—I am sure the Minister does: when you could not get a man on a specific charge, you fell back on that section and you tied up that charge into it. After that, it depended on whether the commanding officer or whoever was trying it thought the man should get a knock. I regret to say that, even with the best of judges, it might resolve itself into a state of liver in the morning.
I think Deputy Carter and Deputy Colley and Deputy Hilliard have expressed sympathy with that point of view.
The view of the Committee is against it.
I will have it examined.
