I have put down an indication of my opposition to the section, merely because it is more extensive than the old section and introduces some words I do not like. It provides for a person who " wilfully destroys or damages, loses by neglect, improperly sells or wastefully expends any money or property ". The real objection I have is to the words " improperly " and " wastefully ". I think they are new as I do not seem to have met them before in the relevant sections in the old Act. I do not like the word " improperly " and I do not like the word " wastefully ". I would ask the Minister to give some further consideration to that. I have already set out on other sections my objections.
The reason for including this offence of " wastefully expending ", which is new, is that an individual in charge of property and its use has a very definite responsibility to the taxpayer. In time of war or emergency, particularly, when controls have to be loosened, there is a great scope for abuse in this connection and there should be something in the Act to remind all concerned of their responsibility in that regard.
"Wastefully expending " are the words causing the Deputy concern. It is difficult to provide examples. A soldier might be so neglectful as to leave a petrol pump running, and it is desirable that an offence of that kind should be covered. I do not think this will produce any new offences, but it will give an opportunity of dealing with that sort of casual neglect that should not operate at any time, and especially in a time of emergency.
The only difficulty I see is that the word " wastefully " might be considered as " excessively ", and there is a subtle distinction. An officer in the course of training his men might over-expend rifle ammunition. That would be excessive, but could hardly be brought within the concept of criminal waste that this section suggests. It is a matter for the intelligent administration of the section. It is a question of how far it is wise to go to safeguard someone from being charged under it. In peace time, if an officer excessively expended ammunition, he would be subject to two disciplinary checks—the reprimand from a superior which would have its effect, although not a legal reprimand ; and, secondly, the more tangible deduction in that if he exceeded the authorised allowance he would have to pay for it. This goes a little further. If the word " wastefully " were to be construed as covering such cases, it would make him guilty of an offence as well. It is hard to see how the Minister can alter it and yet cover certain cases of criminally negligent waste.
The case you have made could be enlarged, if it were artillery that was being used. On a course of artillery training one is permitted to fire only a certain number of rounds. They are very costly and have to be carefully used. One might not be having the best results and someone may say : " Go on, fire a few more," and each of those rounds may cost the State something like £20. That would be serious and wasteful expenditure.
The difficulty is to cover cases the Minister has in mind yet safeguard a man guilty merely of excessive expenditure through an error of judgment. In the case the Minister mentioned, an officer getting bad results and who has his unit out there might decide in the interests of the Service that he would shoot off in excess without adverting to the administrative angle which the Minister has stressed here. If he did I would have no objection to his being subjected to what his commanding officer would say when the thing was queried, or to the financial penalty ; but I wonder whether in the long run it is good for the Service to make that man guilty of a crime. It could operate the other way. Excessive restrictions could completely inhibit a man's initiative. After the commencement of the emergency in 1939 until December, 1939, the Defence Forces were completely inhibited by the peacetime approach to a guard in such a way that a guard could not go beyond certain limits even in the prosecution of his duty. The situation was such and the regulations or customs were such that it was as much as his liberty was worth, quite apart from the possibility of being charged with homicide, if he fired a shot even in defence of his post, even bona fide. As a result there was a serious danger that guards would be inhibited. After the Magazine Fort raid orders were issued which changed that situation. However, excessive restrictions could completely inhibit the initiative of military personnel. I am trying to direct attention, in view of Deputy Cowan’s remarks, to the possibility of qualifying the word “ wastefully.” I cannot suggest a way at the moment. The Minister might note the point to deal with it on the Report Stage.
I was not worried so much about the matters referred to by the Minister or the Chairman. Sub-sections (2), (3) and (4) deal with the money and property of messes, institutes or canteens. Sergeants' and officers' messes have always been run by the members of those messes themselves, subject to guiding regulations. In recent years I have watched a development that I always had some objection to, and I never took kindly to it. It was the allocation to a special section of the Adjutant-General's branch of all responsibility for the investigation of affairs of messes. In its early stages that was all right. Reports came in and were looked at. Eventually, however, officers charged with that responsibility began to go further than the original intention and probe into things that were not the concern of Army headquarters. If you have an officers' mess administered by a committee, subject as it always is to the control of the local commanding officer, the senior officer of the mess, things go right, but it has developed that certain officers charged with the responsibility of investigating these monthly or periodical reports have begun to go more closely into the administration by the officers and men on the staff. The danger I see in the section is that an officer in charge of administration in the Adjutant-General's branch or one of his staff may at some future date say in an officers' mess that the money paid for a piano or something else was wastefully expended, and that it was too extravagant. I do not think that should be so. If there is authority in the mess to spend money and a proper decision is taken the mess should not be subject to the control of an individual who says that they should not have spent so much. I can see that the main purpose of the section is not so much to deal with expenditure on ammunition—although it can certainly deal with that—but with messes, institutes and canteens. Any person who wilfully destroys or damages property commits an offence, and should be brought to book for it, but I am afraid that somebody may come down and say " you spent too much ", and that a man will be charged with an offence.
I do not think that they can be charged. There is the canteen board.
The canteen board has a different function and I have deliberately kept it out.
The piano you are discussing could not be bought without authority.
In an officers' mess that kind of authority does not apply.
I am not saying this dogmatically but I do not think that an officer responsible for a mess could purchase by his own decision a piece of property as valuable as a piano. He would have to get higher authority.
The local mess committee would decide to buy it. They might perhaps decide to get a painting of the Minister for which they might spend a lot of money and somebody could say that that money was wasted.
They would buy it out of mess funds.
It would be their own money.
It is covered by the section.
That is what I am worried about.
Does not Deputy Cowan's point in principle come back to my point ? I agree with Deputy Cowan that that is a more serious angle. It comes down to a distinction between such wasteful expenditure as amounts to criminal neglect or recklessness and excessive expenditure which might fall short of being criminal. Could the Minister meet it like this : " or wastefully, or in such manner as to evidence gross neglect or recklessness "?
That is making it almost impossible to prove.
It should be difficult.
You are going to make it impossible. The case that Deputy Cowan has made regarding expenditure on the piano——
I admit that it is not the best case.
——is not a good case because the mess committee would deal with that and no individual officer could be charged with wastefully expending money on it.
A mess is run and organised in a certain way in accordance with regulations. It has its committee. If a person does anything wilfully, steals or misappropriates anything or damages anything by neglect, he can be dealt with, but this question of wastefully expending creates trouble. The officer from Headquarters Staff may have one idea of how expenditure should be incurred while the local mess committee may have different views, and he would get power in this Bill to bring a charge against a particular person, even the commanding officer who sanctioned the expenditure. It is a usual thing about mess administration that expenditure which the committee decides to incur usually gets the O.K. of the commanding officer.
Would not "improperly" cover " wastefully " ? The Minister has brought the word " improperly " into the Bill. In a number of cases I would like to have it out, but there are a number of cases where the Minister wants it in. As a result of the Bill, it will become a military term, and the word covers everything you cannot define. If money is wastefully expended it is improperly expended.
It is again the question of the legal mind and the lay mind.
In fairness to the Minister, I should say that the legal mind would be very active to show that " wastefully " was not the same thing as " improperly ".
If they could prove that, the introduction of the word here would not make much difference.
That would be the line of attack. I am not sure that, in the heel of the hunt, the victim would be any better off.
Take sub-section 3:
" Money or property contributed by members of the Defence Forces for the collective benefit of such members."
There is a mess secretary and a mess president. Suppose that there is a function in the mess and everybody is enjoying himself; the president decides that it would not be a bad idea to put up a few more bottles of whiskey, which often happens.
To the prejudice of good order.
He could be caught under the section for wastefully expending money. However I will leave it to the Minister.
Rarely a case of that type arises in messes.
It never happened, but in the Bill we are making provision whereby a person who does that can be up for courtmartial and get two years, I suppose.
The Minister will consider what we are saying.
Messes are governed to a large extent by their own members and I would not like interference except when something is going badly. Messes are investigated in the same way as the Quartermaster-General's branch. Officers' or sergeants' messes are the property of the officers or sergeants themselves.