Mark Dreyfus (Isaacs, Australian Labor Party) Share this | Hansard source

I rise in support of the Military Justice (Interim Measures) Bill (No. 1) 2009 and Military Justice (Interim Measures) Bill (No. 2) 2009, which, as the House has heard from the second reading speech, are a response to the decision of the High Court in Lane v Morrison, handed down on 26 August 2009. In that decision the High Court declared the provisions establishing the Australian Military Court in the Defence Force Discipline Act 1982 to be invalid. As we have heard from previous speakers, those provisions, which established the Australian Military Court, came into existence through legislation passed by the former government in 2006—namely, the Defence Legislation Amendment Act 2006. It was legislation which was criticised by Labor in opposition. Labor, indeed, drew attention to the very problem which has been identified by the High Court in Lane v Morrison and which has led to this legislation being struck down.

As the House has heard, this is legislation to, as a stopgap, reintroduce the former system of trials by court-martial and Defence Force magistrates. It is a system which, I think it is fair to say—because it was in existence for many years before the amendments to the scheme came in in 2006—is well understood, but it does not, of course, represent reform in any sense because it is a return to the system which applied prior to October 2007. As a consequence, it is a system of which we can say that it has known historical support, that it has known constitutional support and that it is familiar to very many—perhaps I should not say all—ADF personnel. Certainly those who were members of the ADF before October 2007 would be familiar with this system.

It is necessary to legislate in this way because it is critical that the ADF have a functioning military discipline system, particularly when the forces are engaged, as currently, in operations overseas. The government has acted with extraordinary promptness, as was called for in the decision made by the High Court and handed down on 26 August 2009. But it is a system, as I have indicated, that does not amount to reform; it amounts to a return to the system that was in place. The trials by court martial and the Defence Force Magistrate were guided and reviewed by senior counsel under the former system, and under the system as will exist, it is hoped, on a temporary basis were guided to ensure that they were conducted in accordance with law and that any convictions and punishments were appropriate in the circumstances. Under the former system, the one that is to be reinstated, if ADF members remained dissatisfied with the conduct and outcome of their trial, they had additional rights to petition their service chief and to appeal to the Defence Force Discipline Appeal Tribunal and the Federal Court on questions of law.

The regret is that a great deal of work that occurred in 2005 and in earlier years directed at reform of the military justice system and at the often cogent criticisms that had been expressed about the military justice system will now have to commence again. And the regret is that the period of nearly three years since the amendments were brought in 2006 is a period that has effectively gone to waste. It is also a regret that the problems that have led to the legislation being struck down by the High Court are problems that were directly identified both in a Senate committee report in 2005 and by opposition members in this parliament at the time that the legislation was presented.

The House should not be in any doubt about the clarity of the High Court’s reasons for striking down the legislative scheme. One need go no further than the joint judgment of Chief Justice French, writing with Justice Gummow, in the decision handed down on 26 August, Lane v Morrison, where Their Honours outlined reasons for their conclusion that the legislation was invalid in these terms:

… The judicial power identified in Ch III is that of a body politic, namely the Commonwealth, which is distinct from that of the States and, given the presence of s 74, that of the United Kingdom. The powers of the Parliament to create courts are found only in ss 71, 72 and 122 of the Constitution. The creation of the AMC is not supported by s 122 as a law with respect to the government of any territory. Nor is the AMC comprised of Justices who are appointed by the Governor-General in Council and with the tenure provided by s 72 of the Constitution.

Further, however, the jurisdiction conferred upon the AMC by s 115 of the Act, to try charges of service offences, involves the exercise of the judicial power of the Commonwealth otherwise than in accordance with Ch III of the Constitution. Legislation conferring that jurisdiction is consistent with the Constitution only if the changes introduced by the 2006 Act, including the establishment of the AMC, are supported by s 51(vi) of the Constitution.

Their Honours go on to explain at length, as does the other joint judgment in the decision, why that was not the case.

As I have said, this outcome, with the uncertainty that it has created for the Australian military justice system, is an outcome which could have been avoided had the words of caution expressed by opposition Labor members in this place at the time been heeded. It is worth noting, for example, what was said on this subject—which has now been raised to such devastating effect in the High Court’s decision—by the member for Barton in his then capacity as shadow Attorney-General during debate on the legislation that has now been declared invalid, the Defence Legislation Amendment Bill 2006. The member for Barton said:

In legal terms there has long been a debate about the authority of military tribunals. They have been challenged in the High Court for their lack of jurisdictional independence and impartiality. The view expressed by the Judge Advocate General is that the closer such a tribunal can be aligned to the arrangements for a court established under chapter III of the Constitution the less likely that a court or tribunal will be subject to challenge. The statement is significant, as we know that there are currently new applications challenging the authority of the current system in the High Court. The pity is that, if the government had accepted the committee’s recommendations—

and the member for Barton was there referring to the 2005 Senate committee report—

for a military court akin to those established under chapter III of the Constitution, this doubt would have been avoided.

The member for Barton went on to explain how other warnings that had been given both by the Judge Advocate General and by the Law Council of Australia in this regard had been dismissed by the government. That is why it is a matter of some curiosity to see the present shadow Attorney-General, Senator Brandis, seeking to avoid the conclusion which everyone should draw, which is that the then government was in error in pushing through the legislation which it did, against the recommendations of very many commentators—against the recommendations of the Law Council, against the recommendations of the Senate committee—and why it is right for members of this House to perhaps look with curiosity at the comments that were reported to have been made by Senator Brandis to the effect that the opposition now ‘backs any plan’, as he put it, to make any new military disciplinary body part of the Federal Court system. While he reportedly says that a 2005 report by the Senate Foreign Affairs, Defence and Trade References Committee had ‘proposed such a course and had warned of the issues of not setting up the Australian Military Court as a chapter III court’, Senator Brandis is now reported to have said:

But the views of Defence that there wasn’t a problem prevailed and we can now see that the Senate was right and the Defence Department was wrong.

Those comments are something of a curiosity, because what is left out of that account of the legislative process, which seems to have included only the defence department and a Senate committee, is the role of something called the government. The former government made a decision to legislate in this way, ignoring advice from very many respected sources, ignoring the conclusions that had been reached about the need for close attention to the provisions of chapter III of the Australian Constitution, and it has resulted in the uncertainty which now has to be attended to by this remedial legislation. It is something which could have been avoided and should have been avoided, but it is now left to this government to step in, as we are doing, to introduce what is anticipated to be temporary legislation designed to ensure continuity of a system of military justice, which is of course very important. I commend the legislation to the House.

See this speech in context