Captain Cowan has a series of amendments which are all on similar lines.
SECTION 130.
I move amendment No. 173.
In line 38, to delete " penal servitude " and substitute " dismissal from the Defence Forces if an officer or discharge from the Defence Forces if a man."
This section relates to disobedience to a lawful command of a superior officer and I do not think there is any sense in the world in putting in penal servitude. We have had 30 years experience of neglect to obey orders and every conceivable type of offence of disobeying a lawful command has come either before an officer to be dealt with summarily or before a court-martial. In no case that I know of has even a sentence of imprisonment been imposed and I do not think it is necessary for the Minister to have a reserve of punishment like this. What is disobeying a lawful order? A soldier is given a lawful order and he disobeys it and is guilty of an offence. The provision I want to insert is that if he disobeys such an order, he shall be dismissed from the Defence Forces, if an officer, or discharged, if a soldier, which would be the maximum punishment for this offence.
Sections 207 and 208 show that an officer, when sentenced to be dismissed, may get a lesser punishment—forfeiture of seniority, a fine not exceeding £25, a severe reprimand or a reprimand. In my experience I have never seen anything more than a fine.
One difficulty is that this is an offence also on active service or time of emergency. I agree with Deputy Cowan about the ordinarythings that occur day after day in peacetime but there could be malicious disobedience to orders and failure to carry out duty could be serious, so serious that dismissal would not be sufficient. On active service the crime is totally different and it is necessary to provide for both cases. Again, if you have an offence where the punishment is to be discharge or a small fine, he has only to disobey orders a couple of times and he gets his discharge; thus providing a method of " working his ticket." Is not that a difficulty?
It is.
You would shortly have no Army.
You could make provision for that kind of conduct
Is this not the simplest way, by raising the maximum? For the average case of simple insubordination there is often just a fine of 10/-. There could be, however, the much more serious case where a corporal may order a private to guard a position and the man may say he will not do it. In that case you could have no discipline without fairly strong sanctions.
Our experience is that you very seldom have that type of person. You have ordinary cases of insubordination. In going through the Act, I think that detention is put in the wrong place in the scale of punishments. It is evident that detention is a higher punishment than discharge with ignominy. I think it should be a lesser punishment. We could get somewhere if detention were in a different position.
This is an interesting point regarding the section. Could it be worded " shall be liable in peacetime to detention or on active service to penal servitude or such lesser punishment . . ." ?
Disobedience of orders could have such disastrous and incalculable results, particularly in active service conditions, that I could not regard dismissal or discharge as adequate punishment. In peace-time, of course, the punishment normally awarded by a court martial would probably be that which the Deputy proposes, but even in peace-time, disobedience of orders could have such results as the loss of vital military stores in circumstances in which not even dismissal would be a sufficient punishment.
You, Mr. Chairman, have mentioned that this would provide an excuse for getting away from the Army. Captain Cowan has stated that there have been very few cases. If we accepted this amendment, there might be a very large number. Any soldier who wanted to get out of the Army could adopt this means. I would not accept the amendment under any circumstances.
It is already in the 1923 Act. We have had 30 years' experience of the offence. It says: " liable to suffer, if an officer dismissal, and if a soldier detention or such less punishment . . ." That was considered adequate in the last 30 years. There is no ground, therefore, for the suggestion that the section was not adequate to cover the conditions, during the emergency and otherwise. In this section we are increasing the punishment to penal servitude.
A lesser punishment may be awarded.
Yes, but the maximum has gone up. I sought to equalise the punishments for officers and soldiers in this amendment, but I would be prepared to leave the scales of punishment as in the old Act.
That detention would be higher than dismissal ?
Detention is higher in both Acts. I would be prepared to leave it at that.
That is not what the amendment says.
No. I wanted it to be fair as between both ranks, but rather than step it up to penal servitude I would be prepared to leave it as it is in the old Act.
Question put.
The Committee divided: Tá, 1; Níl, 5.
Tá.
- Cowan, Peadar.
Níl.
- Minister for Defence.
- Colley, Harry.
- Brennan, Thomas.
- Hilliard, Michael.
- Carter, Frank.
Question declared lost.
Sections 130 and 131 agreed to.