Scott Buchholz (Wright, Liberal Party) Share this | Link to this | Hansard source

I move:

That this House:

(1) notes that:

(a) approximately 16,000 Australians fought in the Boer War in contingents raised by the Australian colonies or the Commonwealth Government (after 1901), or joined British and South African colonial units;

(b) Australians, Lieutenants Harry 'Breaker' Morant, Peter Handcock and George Witton served as volunteers in a South African irregular unit, the Bushveldt Carbineers, under British Military Command;

(c) Lieutenants Morant, Handcock and Witton were found guilty at their courts martial for the death of 12 Boer prisoners even though they pleaded their actions were in accordance with orders of their British superiors; and

(d) Lieutenants Morant and Handcock were executed on 27 February 1902, and Lieutenant Witton's sentence commuted to life imprisonment, but he was released from prison in 1904 after representations from the then Australian Government and British parliamentarians, including Winston Churchill;

(2) acknowledges:

(a) that Lieutenants Morant, Handcock and Witton were convicted of committing a serious crime;

(b) the serious deficiencies in the handling of the legal case against the three men, including the right to appeal their sentences by their legal advocate, Major James Francis Thomas, the opportunity to seek intervention by the Australian Government and the ability to contact their families to inform them of their plight;

(c) the failure of British Military Command to implement the recommendations for mercy made by the courts martial to be applied equally to these men;

(d) the findings of respected legal figures and community leaders who support this assessment; and

(e) the ongoing emotional suffering this case has caused the descendants of Lieutenants Morant, Handcock and Witton; and

(3) expresses:

(a) sincere regret that Lieutenants Morant, Handcock and Witton were denied procedural fairness contrary to law and acknowledges that this had cruel and unjust consequences; and

(b) sympathy to the descendants of these men as they were not tried and sentenced in accordance with the law of 1902.

Harry 'Breaker' Morant is a name which is familiar to all Australians, but maybe not for the right reasons. In the movie Breaker Morant, produced in 1980, Edward Woodward, Bryan Brown and Lewis Fitz-Gerald depicted the three Army personnel. It spoke of the executions of Lieutenants Harry 'Breaker' Morant and Peter Handcock on 27 February 1902—some 116 years ago—and the sentencing of Lieutenant George Witton to life imprisonment. The issue continues to ignite passionate debate about the guilt or innocence of these men and calls for the acknowledgement of and relief for their descendants.

I wish to acknowledge some of the descendants of Lieutenant Harry 'Breaker' Morant, Peter Handcock and George Witton, as they sit in the chamber today: Michael and Lesley Handcock; Merrill Urban and Richard Williams; Beverley Little, Tony Little and Lynette Pont—all descendants of Harry; Jennifer Witton-Sand, a descendant of George Witton; Ann and Cathy Morant, descendants of Harry 'Breaker' Morant; and Beach Thomas, a descendant of Major James Thomas, their defence counsel. I acknowledge and welcome you here today to the Australian parliament. And I acknowledge their advocate, James Unkles, and his wife, Maries, and the historians Shane and Melissa Williams, who are in this chamber to witness this moment. James, thank you so much for the work that you've done to date in preparing this auspicious motion.

Today, I acknowledge that Lieutenants Morant, Handcock and Witton were not tried in accordance with military law of 1902 and suffered great injustice as a result. The convictions were unsafe and unlawful and the sentences illegal as appeal was denied. This provides an opportunity for the parliament to discuss this.

The war between Britain and the two Dutch South African republics—the Boer War—began on 11 October 1899, where the Boers declared war on the British, and lasted until 31 May in the year 1902. During the Boer War, approximately 16,000 Australians served under British command and about 600 Australians died during the conflict. It was the first major conflict involving Australians overseas.

Harry Morant, Peter Handcock and George Witton, like so many other volunteers from Australia and other Commonwealth countries, joined up to support the Empire. The three men became commissioned officers and joined a volunteer unit called the Bushveldt Carbineers. These men shot 12 Boer prisoners while acting under the orders of senior British regular army officers—this fact is not in dispute. The court martial made significant recommendations for the three accused with respect to shooting the Boer prisoners. The court strongly recommended that, due to mitigating circumstances, including their lack of previous military experience, their ignorance of military law and their good military service during the war, mercy should be shown during the trial and their sentences. The court martial and Lord Kitchener, the military Commander-in-Chief, confirmed their sentences on 25 February 1902. He commuted Witton's sentence to penal servitude and ignored the court's recommendations for mercy for Handcock and Morant. Following the trial in 1902, Lieutenants Moran and Handcock were executed and Lieutenant Witton was imprisoned but released from prison following representation from Australian and British parliamentarians.

Today, I acknowledge that the process used to try these men was flawed and that they were not afforded the rights of an accused person facing serious criminal charges enshrined in military law in the year of 1902. The prosecution had three months to prepare cases against the accused before trials commenced in January 1902. That was in stark contrast to Morant, Handcock and Witton, who were denied the right to consult legal counsel until 15 January 1902, leaving one day's preparation before trial to seek legal advice on serious allegations and complex issues with their defence counsel, Major James Francis Thomas, with whom they had had no previous contact. Their confinement and their limited time to prepare a defence, including locating and interviewing witnesses, prevented or frustrated them from mounting a defence to charges of murder. The circumstances that led to the execution of Morant and Handcock and the sentencing of Witton to penal servitude were characterised by indecent haste and a disregard for the rule of law and the appeals process.

This is what this motion speaks to. It speaks to the fact that these officers in the Australian Army, serving as volunteers, were not afforded their right to an appeals process. They were also prevented from communicating with their relatives, the Australian government and, most importantly, the sovereign king, who could have examined their pleas for clemency. Had their verdicts been stayed for a few days, Handcock, Morant and Witton could have discussed their options with legal counsel. They could have sought advice from the Australian government, as the military standards would have normally provided. Lord Kitchener made himself unavailable when the sentences were announced and could not be contacted, denying an opportunity for the accused to seek his reconsideration of the sentences. Lord Kitchener's actions ignored due process and denied an opportunity for an appeal or allow the men to exercise their right to a state or military redress of grievance. The sentences were carried out within two days of convictions and the sentences being announced. The accused were denied the opportunity to consider all avenues of review, including appeal action, with this unnecessary haste.

The laws of war prior to 1928 permitted reprisal against prisoners. 'Take no prisoners' was then a lawful order and was construed as such by Morant, Handcock and Witton, demonstrating that the British military had to take decisive action in fighting a devious guerrilla campaign waged by the Boers. Kitchener's decision to issue such orders was considered lawful according to the law in 1901, and one that had to be obeyed by the men. At the time of the offences, the law of reliance on superior orders was recognised as a legal defence in certain circumstances.

Sir Isaac Isaacs, Witton's second defence counsel, who eventually served as Governor-General and Chief Justice of the High Court, entered a submission on Witton's culpability, obedience to superior officers, limited military experience and disproportionate sentence. This could also be applied to the cases of both Morant and Handcock. Following a petition signed by over 80,000 Australians and support from the Australian and British parliaments, Witton was released from prison. Several members of the legal community have also supported the expression that we have here today, and I mention David Denton QC; Robert McClelland, former Attorney-General; Sir Laurence Street QC, former Chief Justice of the New South Wales Supreme Court; Geoffrey Robertson QC; and Gerard Nash QC.

I acknowledge the descendants of Lieutenant Harry 'Breaker' Morant, Peter Handcock and George Witton. The treatment of these men has caused them much grief and shame. Over the years, their families have had to try to deal with the guilt of the way in which these men were treated. Their collective grieving has been in secret, fearful that they would be shamed for the events of all those years ago. I'd like to express my deepest sympathy to all those in the chamber here as descendants and hope that this motion will go some way to easing your pain from 116 years ago. The Australian support for the British during the Boer War was significant for an emerging nation. This motion regarding Handcock, Morant and Witton recognises their service, respecting that duty to obey the orders of British superiors and be loyal to the Crown.

Lieutenants Morant and Handcock were the first and last Australians executed for war crimes, on 27 February 1902. The process used to try these men was fundamentally flawed. They were not afforded the rights of an accused person facing serious criminal charges enshrined in military law in 1902. Today, I recognise the cruel and unjust consequences and express my deepest sympathy to the descendants and thank their advocate, James Unkles, for his ongoing work. Today, I acknowledge the Morant and Handcock descendants and I note that this appeals process, again, will help bring some closure to what is an oversight and a travesty of military justice. It is through these few words in this chamber that I hope you find relief and that the history books will reprieve you.

Mike Kelly (Eden-Monaro, Australian Labor Party, Shadow Assistant Minister for Defence Industry and Support) Share this | Link to this | Hansard source

I rise to thank my good friend the member for Wright for raising this motion. I salute his support for men and women in the Australian Defence Force and the interest he's taken in this issue. I also acknowledge the descendants who are in the chamber with us today on what has been an issue that has been a deep scar on and deep trauma of the Australian experience over many years. It was in the context of one of the more traumatic conflicts that our men and women in the Australian Defence Force have been involved in—the guerrilla warfare counterinsurgency environment is the most challenging circumstance that serving men and women can be involved in. We all know the stories that there have been through the years of being unable to identify the enemy clearly in that environment, the severe tension and trauma that is put upon those people in working through difficult environments of being sniped at and, in more modern times, attacked by improvised explosive devices. The incident that comes to mind too, most recently, was the killing of the cook in Afghanistan, Private Jones, and the emphasis that that then places on leadership in these circumstances, where we have to ensure that we're wrapping around our personnel, that there are no revenge or retaliation motivations, and also that people that we identify who are experiencing the stresses and traumas of these environments are properly identified and provided with support.

One thing that really jumps out at you if you look back at the history of this war, as I have. In also drawing on my own personal experiences in many deployments, I've noted that your standards start to get brutalised and can decline. This first happened to me in Somalia. It really came as a shock to me when I identified this happening. I understood then that one of my biggest roles as an officer was to maintain standards, to identify these kinds of pressures and problems that can arise. Many times in my own deployments there were circumstances where it would have been quite easy—no-one would have known—to fudge issues and problems in a way that would have been completely counter to the long-term strategic objectives we had and the interests of our soldiers in both their safety and their mental health in subsequent years.

Coming back to that experience in the Boer War, one of the things that really jumps out at me is the issue of the mental health of Breaker Morant himself. When his good mate Captain Hunt was killed and his body mutilated, something clearly snapped in him. It was identified by all the observers who were there that he was a completely changed person after that. Because this was an irregular unit, there were clearly failures of leadership about managing those personal matters in that brutal environment. Of course different standards applied at that time about how prisoners who were wearing uniforms were dealt with. The circumstances in which these people found themselves created this massive mental trauma that should have been better managed.

As has been alluded to, the issue of the 'justice' process was the greatest heinous issue of all. When you look back and think that we became a nation during the course of this war, and our government was not even informed for a couple of months about the process that took place and that these men were executed and Witton imprisoned, that led to the fact that we weren't going to let that ever happen again. So, if there's anything positive that we can say came out of this, it was that Australians on all sides of politics, and in our national approach to these issues, were never going to be subject to military justice again. And just as well, because in the First World War there was a lot of intense pressure to bring Australian military personnel under military justice. The British executed over 300 people—306 people, including Canadians and New Zealanders and Irish—but no Australian was executed. We were subject to our own discipline system. The reason that happened was the experience that occurred in this unfortunate and tragic circumstance.

So it's important and it's great that we've learned these lessons. I might also say, to the great credit of the Australians serving in the Boer War at that time, that many of them identified and were ashamed and disgusted by some of the practices that were going on there, given, obviously, signals by higher command, and actually raised this issue en masse in a petition to say, 'These need to be investigated and dealt with.' We've learned that lesson. We need to maintain that standard. If we take any lesson out of this, we need to preserve the integrity and the reputation of the slouch hat. Obviously these injustices of the past need to be remembered.

Michael Danby (Melbourne Ports, Australian Labor Party) Share this | Link to this | Hansard source

I commend the member for Wright and the member for Eden-Monaro for their remarks. The injustice suffered by Harry 'Breaker' Morant is something that is in the Australian imagination. I commend the members of his family that are here in the gallery, and particularly Jim Unkles, for his long campaign for justice on their behalf. This is not an issue, as the member for Eden-Monaro pointed out, of whether some wrong act was committed; it's an issue of whether Australian servicemen serving in the Boer War were treated differently to British troops fighting in the same conflict. It's not just clear from the legend of the film but from all of the research that has been done since that that was the case.

I really think the member for Eden-Monaro made a great point: because of this great injustice, perhaps Australian troops were not executed during World War I, which came so soon afterwards. That's a very important step. It was a step that Australia took in seeing that we were more independent of Britain—not that we want to disassociate ourselves from the great Westminster system or anything like that, but there were circumstances where the imperial interests of Great Britain, prior to the First World War, were trying to be friendly with the German kaiser. Lord Kitchener felt, therefore, that the Australian colonials could be treated differently to British troops. These kinds of incidents happened after, as the member for Eden-Monaro said—and I'm sure the member for Wright did too—the mutilation of members of the Bushveldt Carbineers by the Boers. It was a very vicious conflict. Breaker Morant and his associates were treated differently to British troops. I think the idea of Lord Kitchener, in making himself absent from any ability to appeal the court martial, was that this would appease the Germans. After all, a German minister had been killed in that conflict. If one looks at even the geostrategic aims of what was attempted to be achieved, no appeasement was raised with Germany. The kaiser was determined to have his Great War; he was determined to show that Germany was the great power in Europe. And such foolish efforts by Lord Kitchener to appease, in anticipation, the Germans by executing colonials was unethical and a mistaken idea.

Jim Unkles, in his wonderful piece recently in The Australian, explained that this is a debate not about the execution of prisoners during the Boer War but about whether they were denied justice. He details the scandalous point that Lord Kitchener left Pretoria and told his staff he was uncontactable, thereby denying the Australians their legal right to appeal to King Edward and seek the assistance of the Australian government. That was a calculated perversion of the course of justice. He may have been told to do that by higher-ups in the British government, but, whatever it was, it was an example of treating Australians differently. I think this country has developed independently since then. That was a key point in the breaking of the commonality between Australia and Britain. If one looks at The Bulletin or any of the magazines that were published in all of the intervening years, they were very strongly aware of this injustice, and it sort of helped develop the independent Australian psyche that we have now, particularly when we're involved in military conflict. It's commendable that we continue to raise this with the British. I don't think any justice will be done until the capital punishment suffered by those two poor men is overturned.

Tony Smith (Speaker) Share this | Link to this | Hansard source

The time allotted for this debate has expired. The debate is adjourned and the resumption of the debate will be made an order of the day for the next sitting. At a personal level, I welcome the descendants of the Morant, Handcock and Witton families to the gallery today and also James Unkles and his wife. Jim is a very passionate and dedicated member of my constituency and I want to welcome him here today.