SECTION 162.

I move amendment No. 198:—

In paragraph (b), line 40, before " fails " to insert " without reasonable cause."

This paragraph deals with payment of the just demand of the person on whom any officer or men have been billeted. Deputy Brennan would agree with me that, if he had no money, he could not pay and that would be a reasonable cause. I think the Minister will have no objection to accepting this amendment.

I will have the point looked into. I should not like to say straightaway that I would accept it.

This does not mean that a man must pay on the nail.

He fails to comply with the regulations if he does not pay. When the matter comes to a court-martial, the man can say he had a reasonable cause if the amendment is accepted, but if it is not accepted, the simple fact that he does not do it is an offence and he is convicted.

I should imagine that what would happen so far as payment is concerned is that the man would be allotted a certain amount to pay.

Mr. Brennan

The point that struck me is that you go into a man's premises and billet a number of men and demand a certain amount of food. The owner of the premises may not be in a position to provide that food without getting money to purchase it.

That case would be met on the principle that it is not possible to get blood out of a stone.

A court-martial might consider his answer a good answer, but I do not want to leave a court-martial in the position in which it would be, if this amendment is not inserted.

This provision applies only to military personnel. Deputy Brennan seems to think that it would apply to the individual.

He seems to think the man would want the money.

Mr. Brennan

I see ; I am sorry.

This only applies to military personnel and the case I was citing was the case of, say, a sergeant-major who was given the money by his commanding officer to pay for the billets on the following morning. If he did not pay, he would be wilfully withholding money from a person justly entitled to it.

The Minister has agreed to look into it.

Amendment, by leave, withdrawn.
Sections 162 and 163 agreed to.
Amendment 199 not moved.
Section 164 agreed to.
Amendment 200 not moved.
Section 165 agreed to.
Amendment 201 not moved.
Section 166 agreed to.

I move amendment No. 202:—

In sub-section (1), line 3, before " is " to insert " (as hereinafter defined in the section)."

This is a very important section. It is the old Section 68 of the Defence Forces and everybody knew Section 68. It was the section which enabled a man to be charged with almost anything. If his superior officer did not like the way he walked or the way he talked or smiled, he could be charged under this section with being guilty of an act, conduct, disorder or neglect to the prejudice of good order and discipline. I always had the idea that there was really too much in the old section and I want to limit it somewhat and not to leave it to the whim of a superior whether a man would be charged with an act, conduct, disorder or neglect to the prejudice of good order and discipline. There should be a clear comprehensive definition of it. For the purposes of the section, the following acts are defined to be an offence : contravention of any of the provisions of this Act, and there is no trouble about that; contravention of any regulations, orders or instructions published for the general information and guidance of the Defence Forces ; and contravention of any general, garrison, unit, station, standing or local orders. That should be wide enough for anybody because anything that governs a soldier from the day he joins the Army until he leaves it is laid down in the Act, in Defence Force regulations or in other regulations issued by the Minister or by superior authority. If it is not laid down in these, it is laid down in some general, garrison, unit, station, standing or local order.

If it is a breach of any one of these a contravention by act or omission, it is an offence, but that is as far as we ought to go. We have the position that where a case comes before a court-martial—and the great majority of these never come before a court-martial they are dealt with by the commanding officer or the company commander—the court is always advised by the Judge Advocate that it must consider, first, whether the act complained of is to the prejudice of good order and military discipline. They have to decide that first and then have to ask themselves: is this man guilty of it ? What that means is, as I have already said, that to a large extent it is left to the whim of a superior to bring a charge of conduct to the prejudice of good order and military discipline. There ought to be the restriction which I propose in the amendment.

This is a case in which Deputy Cowan, if he thought of himself in uniform again, with the problem of maintaining the discipline of a unit, would think twice. If the amendment is accepted, it means that only such acts as come within the Act itself explicitly, regulations and general or garrison orders are offences, and, if that is so, there are all sorts of ways of getting out of it. You cannot go so far as to define everything and in a case where the Minister went so far as to define conduct which showed contempt, it was made rather a laugh of, even though it is a matter that you have to take into account where discipline is concerned. I would take a completely apposite view to that of Deputy Cowan on this section. I think it is necessary for the maintenance of discipline and if you have not got something of this nature, you will not be able to have any discipline at all. Suppose a soldier in an upper billet decides that it is too much trouble to carry a bucket of slops down the stairs and heaves it out the window on to the square. It is not a crime and you are scarcely going to think it all out in advance and say: " You shall not throw slops out the window." I do not think anybody will suggest, however, that it is good for discipline and order to do so, and what are you going to do in a case like that ? You must provide for it.

If a man appears on parade obviously without any preparation and in a slovenly fashion, you cannot very well start at the top and say that the hat shall be worn at such an angle or placed squarely on the head and that each button shall be buttoned. You cannot prescribe all these things in complete detail, but still it is necessary, if an officer is to maintain discipline and a stardard of efficiency, as most of us who have had experience of Army life know, that he should have power to enforce discipline of that nature. In my view, the section, though from the lawyer's point of view eminently objectionable, is a military necessity in peace and in war. There is one thing worrying me about it. Deputy Cowan has moved an amendment, but I am afraid that this amendment might not be necessary as the section stands, that the section might be as narrow as Deputy Cowan wants it. I for one would prefer if it were wider. For the purposes of the section, certain things are defined as offences, and, if this came to a superior court, a lawyer would immediately take the line of saying that this defines what comes within the section.

" Sub-section (3) of this section shall not be construed as affecting the generality of sub-section (1) of this section."

I am not so sure that that helps much, as conduct to the prejudice of good military discipline is left undefined except in the sub-section and in the use of the words " for the purposes of this section ". I tried to work in the word " include " there.

Amendment No. 202 is unacceptable. It is an effort to turn sub-section (3) into a definition. Sub-section (3) is not a definition. It merely provides, so that everybody will know, that certain specific acts or omissions are " conduct to the prejudice ", but, as sub-section (4) shows, sub-section (3) is not exhaustive, and is not, therefore, a definition. The Deputy is endeavouring to tie up the section in a way which could not be accepted. If his amendment and his further amendment, No. 204, were admitted, the only acts which would constitute " conduct to the prejudice " would be those in sub-section (3). But, as anybody with military experience knows, it is impossible to foresee and provide in an Act or regulations for all the various things that can constitute " conduct to the prejudice ". Actually, many of the new sections in this Bill will reduce the number of charges under this particular section, as they will deal with matters which formerly had to be regarded as " conduct to the prejudice ". But an exhaustive list cannot be written down. Accordingly, as I have said, I do not accept the amendment, and that also applies to amendment No. 204.

It would have to be wide, as an offence committed in the barrack may be very different from one committed outside, from the Army point of view. If an officer gets drunk and is brought to his room, that is one offence; but it is quite another thing if he gets drunk outside and appears that way in the streets. It is a different thing from the Army point of view, though it is the same offence. I think we need this section in the wide way in which it is.

I am glad Deputy Colley mentioned drunkenness, as it helps us to examine the section. Drunkenness is specifically an offence—drunk on duty or off duty—in another section of this Act. Conduct to the prejudice of good order or military discipline is not drunkenness.

That is already dealt with.

It is an important point which Deputy Colley has mentioned. Suppose a man does not carry out an order or neglects to obey a standing order, a company, battalion or garrison order, he commits an offence. It used to be under Section 41 in the old Act and is in this one under another section. That is an offence in itself.

Everything that a soldier can do is laid down in orders. The trouble about this Section 167 and the old Section 68 lies in that it can be used by a superior officer to punish a person who did something that he did not like. I have seen the section abused, where someone did not like what a junior did and put it down as conduct to the prejudice of good order or discipline. Take a sergeant or corporal who meets a private walking and who thinks he is walking in " snooty " fashion and puts him down for conduct to the prejudice of good order or discipline. He is brought before the company officer. Whether he is convicted or acquitted does not matter ; at least, he is put on the carpet. This section gives a superior officer, from corporal right up to general, the power to say that something a junior does is an offence. That is the danger. If some other definition could be put in that would remove that objectionable feature, I would be quite happy.

I intended these two amendments to go together, as I wanted to limit conduct to the prejudice of good order to mean the contravention of any order. If a soldier now disobeys a Defence Force regulation he cannot be charged with disobeying a Defence Force regulation; he is charged with conduct to the prejudice of good order or discipline. Under Section 41 of the old Act he could be charged with neglecting to obey a garrison or other order. If the Minister made a Defence Force regulation and a soldier broke it, he was always charged with conduct to the prejudice. That was understandable. Similarly, if there is some provision in the Act and he breaks it and it is not an offence otherwise, he can be charged with conduct to the prejudice, or if he attempts to commit any offence it can be described as conduct to the prejudice. If the Minister can do anything to limit its present wide application, where almost anything that a superior dislikes can be made an offence, I would be quite satisfied.

My amendments were designed to limit it entirely to a breach of any order, to a breach of the Act of any regulation. There could be a code of conduct laid down in regulations, comprised in a little booklet which the Minister could issue for soldiers, a breach of which would be conduct to the prejudice. That could be done as a ministerial regulation, and I do not think any member of the Committee would want to go any further than that; and we would not have a superior officer, from a corporal up, deciding that any action of a soldier of which he did not approve was conduct to the prejudice.

Is it not the trouble that when you would come to the code you would find it necessary to put in some general clause such as there is in the Bill?

I am not going to dispute the example Deputy Cowan gave, as I have had too much experience of the Army and know these particular cases may have occurred. I went to the trouble of asking my advisors to give me a list of the type of cases that had been dealt with already and which were not covered by regulations and orders and I find such cases as passing bad cheques, giving a false name to police, improperly obtaining money in return for a railway warrant, producing a medical certificate knowing it not to be genuine, borrowing money from subordinates, wrongfully opening official letters, fighting in a public street, attempting to induce a military policeman to neglect his duty, knowingly making application for an allowance in excess of entitlement, an officer on duty drinking with N.C.O.s and men, altering a date on a leave pass, reporting sick without due cause. Those are actual cases which have arisen over a period.

Those would be the cases that come on record to General Headquarters. Those Deputy Cowan is talking about are the lots of little ones coming before a company commander for which a man does a few days confined to barracks. I feel that this legislation is necessary for the maintenance of military discipline, that you have to rely on having decent standards in the Army as between officers and men. In modern times you do not pick up recruits on the street or get semi-criminals as used to be the case. You have to treat the men properly and well, and the dangers Deputy Cowan sees are very much less than they were years ago. I feel that the section is necessary.

You have to rely on the honesty and probity of the company officer.

Without casting aspersions on anyone, I would rely on nobody where human nature is concerned. Sergeants and privates have their own little difficulties, spleens and narks. The list of offences the Minister gave makes a very respectable selection of offences under the section. Such a thing as " fighting on the street " in uniform is laid down for recruits as an offence, as they are told not to bring discredit on the uniform. Passing dud cheques in the case of an officer may be considered scandalous conduct which could lead to dismissal with ignominy. If a person were deliberately guilty of a disorderly act it should be an offence, of course. This thing, however, of a superior not liking what an inferior in rank does and charging him with an offence is what I am objecting to. I can clearly see what the Minister and the Chairman say about it. No harm would be done if my amendment were accepted, because even if that would limit the offences they would still cover an enormously wide field. A code of conduct should be laid down by the Minister for everybody in the Army and a breach of that should be an offence under the section.

You would be bound to miss something which would be conduct to the prejudice.

You would have to have a general clause in it.

Read the standing orders of any camp and you will find the most amazing things. The experience of the last 30 years and of 30 years before that have been put into standing orders. Very few people read them, but, nevertheless, if there is a breach they are charged. Nobody can complain of that, because the orders exist. Some of the offences, however, should not be considered offences.

There are quite a number that have not been thought of.

We are inhibited from going frankly into details of the things which should be covered.

Question put.
The Committee divi ded: Tá, 1; Níl, 5.

Tá.

  • Cowan, Peadar.

Níl.

  • Minister for Defence.
  • Brennan, Thomas.
  • Carter, Frank.
  • Colley, Harry.
  • Hilliard, Michael.
Amendment declared defeated.
Amendments Nos. 203 and 204 not moved.
Question—" That Section 167 stand part of the Bill "—put, and agreed to.