SECTION 170.

I move amendment No. 208 :—

In sub-section (2), page 74, paragraph (e), lines 41 and 42, to delete " any person subject to military law who is so authorised by any commanding officer " and substitute " any officer or man ".

There is a fine distinction here which the Minister may explain. If there is any arresting to be done it ought to be done by an officer or a man. This section contemplates arresting being done by a person who is neither an officer or a man, but who is subject to military law. That is a very fine distinction. However, the Minister will probably explain it.

What is involved here is the arrest of a civilian who is subject to military law, for example, a Press correspondent or other civilian provided for in Sections 117 and 118. It is not desired that every officer or man should have the power to arrest such a person, which would be the effect of the Deputy's amendment. The provision requiring the authority of a commanding officer is an obvious safeguard to prevent the arrest of civilians who might subsequently be found not in fact to be subject to military law and whose arrest might, therefore, give rise to political or other protests and action at law for damages. It could conceivably happen that one civilian subject to military law could in active service conditions, be ordered by a commanding officer to arrest another civilian also subject to military law. The position could arise only on active service conditions, as only those civilians accompanying forces are subject to military law.

I thought it was something like that that was in my mind, but I felt that if arresting was to be done it should be done by an officer or a man. A commanding officer under the Act has a particular definition. You may get a very senior officer who, for the purpose of the Act, is not a commanding officer. I think there is a slight difficulty there.

I think Deputy Cowan is right in that. For instance, you might have a staff colonel. He would not be a commanding officer. I agree with Deputy Cowan. These people would not come within the ambit of military law except in time of active service or emergency. I do not see why the civilian who is in that position should be in a more privileged position than a soldier.

Active service only—I just want to correct you on that.

I do not see why a civilian should be in a more privileged position than a soldier in these circumstances, and I agree thoroughly with Deputy Cowan.

There should be no distinction.

If I were a staff officer, in the course of my duties I could arrest an officer or soldier below my rank for proper cause or order him to be put into arrest.

You might be inclined to arrest a Press man who might be fulfilling a very important function.

I do not see the logical distinction and I think it is a dangerous distinction. I do not see why a civilian should be put into a privileged position if they are in all other circumstances in the position of a soldier. I thoroughly agree with Deputy Cowan on that.

Do you not think that the provision regarding the commanding officer is a safeguard ?

A commanding officer may be miles away. The commanding officer is a very definite legal entity. It does not mean an officer in command of troops. It means an officer who is commanding officer within the contemplation of military law, which is a totally different thing from commanding a unit.

The Minister may have, under this section, to go and define what is a commanding officer, and when he comes to it he may find that he may have to include every officer as a commanding officer.

An officer who would be commanding a platoon——

Is not a commanding officer.

He was in the particular circumstances—at least I would presume that.

No, he was not. What the Minister says in the reguations is not a fair test in this. We are dealing with statutes, and, as far as possible, we want to avoid what the Minister says in regulations as far as it can be humanly avoided. I will give a case in point with regard to the definition of commanding officer. During the emergency company officers were constituted into independent columns. I will give my own personal experience.

If you turn to the definition section on page 14 you will find that the expression " commanding officer " means in any section in which it occurs an officer declared by Regulations made by the Minister under this Act to be a commanding officer.

That does not meet the case. That simply means that a commanding officer has to be specially specified and that is not the same thing as an officer in command of troops. I was in command of a column in 1940. During the first period of that, I was not a commanding officer although I was completely autonomous and it was necessary to give me an explicit authorisation to give me the powers of a commanding officer to maintain discipline.

Did you get them?

I was given them after some months delay. They were delegated to me after some months delay although I was from the military point of view commanding a detached unit, expected if action came to fight as a detached unit as I had a complete little command. In the military sense, I was a commanding officer, but in the legal sense within the meaning of the word here I was not a commanding officer. It is an important distinction and I agree thoroughly with Captain Cowan in this. I see no reason why civilians should be put in privileged position as against other personnel.

In respect of practical application, here is the position we would be in. A part of the Army may be on active service and a lieutenant may be in charge of an important sector. He has good grounds for arresting a particular civilian attached to the Army and subject to military law and he might be in doubt as to whether his commanding officer or the officer superior to him was an authorised person or whether he himself was authorised. He has no right to arrest unless specifically authorisedand his commanding officer would have to be looking up Regulations to find out if he was authorised. The Minister wants to prevent a military police-man from arresting because that is the only case in which a man would arrest.

The Minister has been advised that Regulations will cover it from the administrative point of view. I thoroughly agree that that principle would be right in peace time but you cannot possibly legislate for active service and all the situations that could arise by Regulations. You might have a humble platoon commander or a senior staff officer neither of whom would be a commanding officer within that sense—it is a technical legal term which does not mean an officer in command of troops. That officer would have complete powers in respect of military personnel and would need them. I see no reason why civilians and especially privileged civilians who have the protection of as well as being subject to military law should be put in a privileged position and I strongly urge the Minister to take Deputy Cowan's view on this.

We are trying to protect civilians not subject to military law and to ensure that in no circumstances will they be wrongfully arrested, and that in fact the persons entitled to carry out any arrest of this character will at least be responsible persons——

That principle applies to all officers.

——and that there will be no possibility of depriving any civilian of his liberty through an error of judgment on the part of some person who would not have the same responsibility as the type of officer to whom we are referring.

We are dealing first with active service. I completely agree with the Minister where peace time or even an emergency is concerned. Dealing with active service, we have to presume that the principle the Minister has enunciated in regard to civilians applies equally to soldiers. I hope that we are going to demandthat the private soldier will be treated with the same degree of responsibility as we would ask for civilians. That being so, and the exigencies of the situation being such as we can imagine, I repeat that there is no justification for putting civilians in a privileged position. In fact, it is dangerous. A Press correspondent might be more interested in getting a story back, and might be quite unscrupulous as to how he would do so. He might have secured information that it was dangerous for him to secure and certainly dangerous to transmit even if it is going to be intercepted further back. To put an officer on the spot faced with that situation in the position of having to get an authorisation from his commanding officer if he was not legally a commanding officer himself is, from the active service point of view, a ridiculous situation to postulate.

If there was a person acting in a manner suggested by the Chairman, communications would be such that the commanding officer could very easily be got in touch with. If we had to insist on having a particular commanding officer to effect the arrest he would be very easily got. The definition I have read out completely covers the fears expressed here. The Minister, according to that definition, can provide by regulation a sufficient number of people to deal in the manner in which we seek to deal with persons who contravene the laws.

What section did the Minister say dealt with the definition of a civilian subject to military law ?

Section 117.

Section 117 deals with it from a different angle.

The Minister postulates perfection in active service, which you will not get. Short of giving powers to a commanding officer, he would have to make every officer a commanding officer. I will give a definite case which can arise and our communications do not come into it. In any case, it would be very foolish to rely on communications in time of war. Acivilian—a Press correspondent—may come into possession of information. He may locate an absolutely vital installation, for instance, or may come into possession of certain information. An officer on the spot has reason to believe that that man will not be discreet enough about that matter, and that officer should be in a position to restrain him immediately in the interests of security, and that restraint can only be achieved by arrest. An officer who thought a soldier, although he would be much less likely to do it, was in a position to behave indiscreetly would have no hesitation in taking precautions to ensure that he would not so behave. It is highly dangerous from a security angle to have any limitation. This is letting the law now step in to freeze up the works on active service in a very objectionable way.

Taking it generally, the Committee has taken the line all the time that, so far as active service was concerned, there will be no interference with the officers or soldiers trying to win the war for the country or to do their duty. Here we have a situation in which certain civilians will be entitled to accompany the forces on active service and one of the civilians may act objectionably. He may interfere in an active way with the powers of a particular officer, and, if he does, he ought to be placed in arrest immediately and held in close custody. If you are going to have the situation that the officer—let him be a lieutenant in charge of a platoon—who discovers this interference or the possibility of a leakage of information—has not the power immediately to arrest that man, you are interfering improperly, in my view, with the powers of that officer on active service. That man could arrest his general if he thought he was engaged in traitorous activities, but he cannot arrest a Press correspondent.

No, but he can remove him.

Can remove whom ?

He can remove the Press correspondent without arresting him by force.

He could remove him but he could not restrain his movements. He could shift him from a particular locality but he could not restrain his movements.

He could remove him into the area where the commanding officer would be who would carry out the arrest.

That would be arrest, technically.

It would not.

He could eject him from a particular situation but could not take him into custody.

Supposing any of us was left in charge of a platoon and we discovered a fellow engaged in very dangerous activities. Do you mean to say that we would let him out of our control? I certainly would not do it no matter what order or regulation was there. If I discovered him in that circumstance, whether authorised by Act or not, I would put him in custody and answer for it afterwards.

You could remove him and then put him in custody, which would be keeping within the law.

The Minister, with his own experience of the exigencies of fighting, would be the first to realise that when it comes to active service you cannot stand on ceremony and deal with the hypothetical cases that the lawyers are so fond of.

That is what I am arguing.

You are arguing for the lawyers.

The Chairman is arguing, or postulating as he said earlier of me, that commanding officers will be so far in the rear that they will not be able to be found. I do not think so.

I disagree with the Minister there. I think it very unlikely that commanding officers will be universally available. First, for many purposes under the Act, it would be undesirable to give every officer the powers of a commanding officer. Undermodern service conditions, troops will be very widely dispersed. In the last emergency I was commander of a certain company of a certain battalion. At one stage I was constituted as an independent column and given attachments—it was all done in perfect order—and sent off on my own. My commanding officer was miles away from me. There were three columns which were scattered over a fairly wide area. If anything happened of a serious nature, the commanding officer was not readily available but it was a long time before a specfic arrangement was made to give me powers. A situation could easily have developed where I had my column organised by platoon columns. In a certain set of circumstances they would have to be widely dispersed and I would have no authority to give the platoon commanders the powers of commanding officers. If they ran up against that situation they would not have those powers. You cannot provide for that by law and to have a restriction like this in an active service provision is all wrong.

Deputy Cowan will agree that on earlier sections the view of the Committee—and of the Minister—was that where you are dealing with active service conditions you have to put law, when it comes to fine details, into the background and you have to rely on discipline, morale, common sense and things like that. Here is a case where we should do the same. No officer is going to arrest a brother officer or soldier or Press correspondent or—and I suspect that here is what this may have been designed to protect—the officials of the Department or State servants generally when sent down to such positions, or is going to interfere with their duties in that way. In the particular circumstances, what is sauce for the goose should be good enough for the gander.

I will undertake to have this looked into, but I suspect from what I have heard argued to-day that you are endeavouring to force more power into the Bill than we are seeking, and I have the suspicion that the people who drafted this section drafted it with an eye to the attitudethe lawyers would take up, that we are looking for too much power. We are in the happy position that you want us to have more power.

In peace time I am for having the soldier as nearly as possible covered by the civil law and I am for infringing as little as possible on them ; but in active service the other principle must rule and there is no objection to giving the powers to cover an active service situation.

I think the regulations are sufficient.

The intention of the administration usually is to seek powers that we would be against. Where the poor soldier is concerned there is plenty of power given here. In peace time I would like to protect the soldier—and I would like to protectthe civilian, too, even on active service—but where we see the excessive case arising where it is our duty to protect officers of the civil arm or Press correspondents and so on, it is the duty of the Committee to preserve a balance. That section could be used to protect officials of the Department of Defence who would be with the troops.

An officer could be put into an awkward position as the section stands, if he were a law-abiding citizen. I think the power could be given to an officer but not to a man.

We could compromise on that.

Debate adjourned.
The Committee adjourned at 9.55 p.m. until 7.30 p.m. on Wednesday, 23rd April.