Bruce Billson (Dunkley, Liberal Party, Minister Assisting the Minister for Defence) Share this | Hansard source

I would like to thank members from all sides of parliament for their contribution to the debate today. I would like to offer some views in summing up the discussion and touch on some of the points that were raised. On 14 September 2006 I introduced the Defence Legislation Amendment Bill 2006. On 9 October 2006 the Senate Standing Committee on Foreign Affairs, Defence and Trade considered the bill and a number of submissions that it received. I thank the committee for its consideration of the bill and for bringing to my attention certain matters that it considered should be specifically addressed or clarified in the bill, which will strengthen the bill as a whole. In my speech presenting the bill I noted the previous defence minister’s comments regarding the Australian Defence Force’s ‘truly magnificent job in defending this nation and its interests’ and the government’s commitment and ‘determination to provide a military justice system that is as effective and fair as possible’. The government continues to express its admiration and appreciation for our defence personnel and the important, challenging, often dangerous activities they undertake both here in Australia and on overseas operations.

To achieve this, as my speech on 14 September outlined, the bill creates a permanent military court to increase the confidence in the military justice system among those it serves and those, more broadly, who observe its operations. The bill proposes to establish a new Australian Military Court that would operate independent of the chain of command. The essence of this judicial independence is reflected in the bill through the principles of security of tenure, security of remuneration and administrative independence. However, the new Australian Military Court must still meet the unique requirements of the ADF, such as the ability to deploy quickly and sit in an operational theatre.

The proposed amendments to the bill outlined today will reinforce this position. The intent of these amendments is to further demonstrate the government’s commitment to installing a best practice military trial system for the Australian Defence Force members and to establish a qualified and experienced military judiciary to ensure a fair hearing and natural justice in the context of the enduring need of the Australian Defence Force to maintain effective discipline and, through that, operational effectiveness.

In meeting this unique mix of requirements, the bill and its amendments must reflect best practice from both the legal and the military perspectives. The amendments I am introducing today address these needs, particularly in relation to the essential military character and status of the Australian Military Court; the structure of the court to meet its predominant caseloads and its exceptional circumstances and to have the capacity to deal with the most serious of offences; the attractiveness of the military judge appointments to the optimum pool of candidates; the maintenance of the level of experience amongst military judges; the rigour of the military jury decision processes; and the clarification of the proposed class of offence regime.

To better maintain a consistent level of experience on the court and to further demonstrate security of tenure, judicial independence and the prospect of career progression, the government agreed that the tenure of military judges would be increased from a period of up to five years to a 10-year fixed period. Whilst there will be no opportunity for reappointment, new provisions will allow for promotion and acting appointments in certain circumstances. These have been included and will recognise the status and the importance of the appointments and increase the attractiveness of the positions to the Australian Defence Force’s legal officer corp.

To further demonstrate the independence and impartiality of these positions, it is intended to replace the Minister for Defence with the Governor-General in the appointment of the Chief Military Judge or a military judge. Automatic promotion in certain circumstances at the midterm point of an appointment has also been provided for; however, the appointments will be subject to the same qualification and service deployment criteria currently contained in the bill for reasons that I outlined earlier. A former Chief Military Judge, military judge or other judicial officer—for example, a judge or a magistrate of a federal court or a court of a state or territory who is serving in the Australian Defence Force—will be able to act as a military judge in circumstances where the expertise or experience of that person is required in respect of a particular charge.

The AMC was not originally conferred with the status of a court of record and there was no legal or practical reason for doing so. Similarly, it avoided conferring the characteristics of a civilian court with greater jurisdiction on the AMC. However, to further enhance the status of the AMC, the proposed amendments will specify that the AMC is a court of record, noting, however, that there will be provisions to limit the publication of proceedings in the interest of security or sensitivity. The size of a military jury will be reconfigured to align the constitution of a military jury with the class of the offence. For example, a class 1 offence—the most serious offence under the bill—will require a jury of 12 members. A class 2 or 3 offence will require a six-member jury where trial by jury is mandated or elected. The determination of questions by unanimous or majority verdict by the jury has also been altered.

The Australian Defence Force currently has serving judges and magistrates from federal, state or territory courts as reserve members. The proposed amendments will preclude a judge or magistrate from a state, territory or federal court who is appointed as a part-time or acting military judge from receiving remuneration under the DFDA if they receive salary or annual allowances by virtue of their civilian judicial office. The rationale for such a provision is not only to reinforce the independence and the impartiality of military judges but also to counteract any perception of financial advantage, incentive or inducement in the remuneration arrangements surrounding the appointment of a part-time or acting military judge.

However, the provisions also provide a capacity to ensure that a state or territory judge or magistrate will not be financially disadvantaged by the operation of the proposed provisions whereby the minister can enter into any arrangement that might be necessary to secure the services of such a judge. This also includes the possible reimbursement of a state or territory by the Commonwealth. As a consequence, the amendments will also amend the Judges’ Pension Act 1968 so that a military judge appointed to the AMC under the DFDA is not eligible for a pension pursuant to the Judges’ Pension Act. Lastly, the amendments will correct an anomaly in respect of the reference to the classes of offences in the bill, particularly in schedule 7. Neither the substance nor the intent of the bill in this respect is affected by these amendments.

A modern and professional force deserves a modern and effective system of military justice. Together with the reforms contained in the bill, the proposed amendments will refine and strengthen existing provisions. They will enable the government to provide a system that will better ensure impartiality and fair outcomes and strike an effective balance between the need to ensure effective discipline in the Australian Defence Force and to protect individuals and their rights. In some of the discussions that have been held in this chamber there seems to have been some confusion about the provisions that are being debated. The opposition is, on one hand, critical of aspects of the original bill and it is then, in turn, critical of the government’s responsiveness to legitimate and well-argued points of view presented at the Senate committee hearings. The government listened carefully to those submissions, recognised the merit in a number of them and has acted quite appropriately and in a timely way to respond to those deficiencies which were identified as part of the Senate inquiry, and I have touched on a number of those amendments.

The changes to the period of appointment—the extension from five to 10 years and the midterm promotion—will not only ensure an attractive opportunity for people who may be considering a role within the Australian Military Court as its chief judge or as a military judge but also secure career promotion midterm so as not to have any suggestion that there is influence on a judge within the chain of command relating to those promotion opportunities. The alternative would have been to not extend the term, and the opposition would have criticised that. To extend the term and not provide an opportunity for promotion would have also drawn some criticism. I think the amendment that has been introduced is quite responsive and elegant in the way that it deals with those dual and competing requirements and expectations.

The other issues relating to the court of record also seek to ensure that the proceedings of the court are available to be reviewed and examined. We have identified and recognised the point that was made during the Senate inquiry and have made those amendments. This is another example where the shelf life of some of the criticisms raised by members opposite had actually expired before the contributions were made in this place. That is not to criticise the opposition for having finalised their speeches prior to the amendments being brought before them, but it does give an opportunity for those listening to this debate and interested in this subject to recognise that those deficiencies most focused upon by the opposition have in fact been addressed in the amendments put before the parliament.

Throughout the discussions about courts martial, members opposite sought to be critical that this was a system that replicates the existing arrangements. A number of points need to be made in that regard. First of all, the Australian Military Court and the provisions within the bill being debated today are but a part of the overall government response to the Senate inquiry into the military justice system. Other elements have already been introduced. One of them is the formation of the position of Director of Military Prosecutions so that there is a consistent, reliable and robust instigation of charges which replaces the current arrangement where more than 30 people within the Australian Defence Force can instigate a charge under courts martial.

There are other areas of work that are proceeding, including the examination of the investigatory powers of the police and the issues relating to culture and training installation—a range of other relevant and germane issues to military justice as canvassed by the Senate inquiry but quite separate from the particular provisions relating to the formation of the Australian Military Court that we are here to discuss today. I would encourage members opposite to actually examine the amendments, to recognise that those amendments enhance a bill before the parliament that was already of some quality and improve it even further, and to recognise that the bill itself and the formation of the Australian Military Court are but a part of a multifaceted approach to dealing with the shortcomings identified by the Senate committee in relation to the military justice system more generally.

Another issue that seems to be constantly argued is the chapter III status of the court under the Constitution. This issue has been discussed and canvassed over and over again. It is the government’s view that the chapter III option under the Constitution would create a court of considerable civilian character and not properly recognise the military requirements that the Australian Military Court must also meet. That should not give anyone the impression that the protections available within civilian jurisdictions are not available to members of the Australian Defence Force. That is quite incorrect and is a false assertion not based on any fact or any actual provision in these bills.

The avenues for appeal and redress and the opportunity in certain categories of offences for the accused to nominate the form and structure through which that charge will be heard are just some examples of how the checks and balances that are available for people before the Australian Military Court system are, in some cases, enhanced and improved versions of what may exist within the civilian environment. This is because the military is different from the civilian world. Military discipline goes to the heart of the effectiveness of the Australian Defence Force and, in introducing these amendments on top of the bill that was already before the parliament, we seek to further recognise those distinctions but, so far as is possible and practicable, implement the best elements of military justice systems around the world and the best and most appropriate elements of the civilian system.

To try and discredit the court as a tribunal, as I think the member for Barton sought to do, is perhaps applying a label where logic would have been more helpful. At the least serious level of the offences considered by the court, it has some characteristics of a tribunal in its responsiveness and the way in which matters can be progressed. But we also need to recognise that the Australian Military Court needs to be able to function for very serious matters, some with a degree of serious criminality, that we understand and more appropriately deal with within the civilian sphere. There are options under the DFDA where civilian pathways are most appropriate to continue with that. However, where the Australian Military Court needs to hear those most serious cases, there are checks and balances. The size of the jury, the court of record and its composition ensure that the best elements of a civilian court are brought to the processes of the Australian Military Court.

So there is a calibration of the mechanisms and the arrangements presented within this bill in keeping with the severity and seriousness of the crime and embracing the best elements of civilian and military disciplines. I commend the bill and the amendments to the House. I present a supplementary explanatory memorandum to the bill.

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