I put down an amendment opposing the section. In the first place, it is a new section. Everything that is in it is new, has never been in an Act before. It is a new law. It is a dangerous law from many points of view, and it is too serious to be inserted. If the Committee will read the section they will see that it is a section to deal with capital offences by commanders when in action. Paragraph (a) says :—
" who, when under orders to carry out an operation of war or on coming into contact with an enemy that it is his duty to engage, does not use his utmost exertion to bring the officers and men under his command or his ship, aircraft, or his other material into action."
My first objection is to the words, " does not use his utmost exertion ". Any soldier and any person who has read the history of the last two warsknows that there can be the greatest difference of opinion as to whether an officer in certain circumstances used his utmost exertion. The danger then is that it would have to be left to a court-martial. Somebody may say: " This particular officer did not use his utmost exertion." He is brought before a court-martial and he is executed, and when he is a long time dead, it is discovered that he did everything that was conceivable and, in fact, that his action may have been the cause of subsequent success on the part of the same force. In my view, criminal law ought not to be based simply on a matter of opinion, because that is what it boils down to—the opinion of the court at the time as to whether the accused officer used his utmost exertion or did not. It is too dangerous to leave it in that fashion.
It is desirable to deal with the section paragraph by paragraph. I will just run briefly over it, because there is the same principle in every one of the paragraphs.
Paragraph (b) says:—
" who, being in action, does not, during the action, in his own person and according to his rank, encourage his officers and men to fight courageously."
There again it is a matter of opinion, did he encourage them or did he not ? People have different methods and ways of dealing with a situation. Does " encourage " there mean that he would have to go around shouting to his men in the old style of the Boer War, with his sword brandished? Some commanders may never open their mouths at all but remain absolutely quiet and retain their self-control. They are seriously considering all things. Somebody may make a complaint that such a commander did not encourage his officers and men to fight courageously. In fact the complaint in such a case would be made by a subordinate. Obviously, it would have to be made by a subordinate, because, if there was superior officer present it would be his duty to take control.
Paragraph (c) says :—
" . . . who, when capable of making a successful defence, surrenders hisship, aircraft, vehicle, defence establishment, matériel or unit to the enemy, . . ."
Again that becomes a matter of opinion—was he capable of making a successful defence? Let us consider Tobruk during the last war. There are books still being written about it—was the commander capable of making a successful defence or was he not or did he do the right thing? It would be dreadful if all that discussion was going on now and he had been executed by court-martial a number of years back.
Paragraph (d) says:—
" . . . who, being in action improperly withdraws from the action, . . ."
I will object every time I see this word " improperly " because that again is a matter of opinion.
Paragraph (e) says:—
" . . . who improperly fails to pursue an enemy or to consolidate a position gained, . . ."
The same point arises.
Paragraph (f) says:—
" . . . who improperly fails to relieve or assist a known friend to the utmost of his power, . . ."
Paragraph (g) says:—
" . . . who, when in action, improperly forsakes his station."
For all these offences the officer shall, on conviction by court-martial, be liable to suffer death.
The experience of the first world war, which I think is more important than the second world war, was that in the stress of battle, where an officer was overcome his action in a critical stage may not have been due to cowardice, deliberate incompetence, or anything like that but may have been due to some medical cause. It is one of those difficult things that are very hard to establish to the satisfaction of a court-martial. This section has been taken from some other Act, from some other army, from some other military law. I am satisfied—I did not look it up—that it is not just something that the Department of Defence here haveworked out on their own because they have had no experience that would enable them to do that. They have taken that out of some Act of some other country. The particular section frightens me. For that reason I put down my opposition to it.