Graham Perrett (Moreton, Australian Labor Party) Share this | Hansard source

I urge all members in the chamber to stay, because this will be a fantastic speech about my support for the Military Justice (Interim Measures) Amendment Bill 2011! This bill ensures that Australia's military justice system remains in operation while the government works to establish the Military Court of Australia. The appointments of the Chief Judge Advocate and the two full-time judge advocates are due to expire in September 2011. This bill extends those appointments to ensure Australia's military discipline system remains in place.

As I am sure the chamber knows, our military discipline system covers a range of issues that might impact on our soldiers, sailors and air men and women. Because of the parliamentary placement program and our job as parliamentarians, we do know that those who don the green, the white or the blue are definitely a special breed of people. I note the member for Ryan, who is in the chamber tonight, has family who have done just that. For people who do don the green, the white or the blue, words like 'honour', 'courage' and 'service' are not words that are just trotted out in speeches on Anzac Day; they are not esoteric concepts. These are actually ways that they use to live their lives every single day.

Obviously, surrounding that are the laws of war and the laws for preparing for war. The primary aim of the law of conflict, also known as international humanitarian law, is to protect the victims of armed conflict and to regulate the conduct of hostilities based on a balance between military necessity and humanity. At the heart of the law of armed conflict lies the principle of distinction between the armed forces who conduct the hostilities on our behalf, or on behalf of the parties to an armed conflict, and civilians, who are presumed not to directly participate in hostilities and must be protected against the dangers arising from military operations. Under these international humanitarian laws the concept of direct participation in hostilities, which refers to conduct which is carried out by civilians, suspends their protection against the dangers arising from military operations. Most notably, for the duration of their direct participation in hostilities, civilians may be directly attacked, unfortunately, as if they were combatants in those particular circumstances.

Throughout history humankind has, unfortunately, continually resorted to force to resolve its conflicts. Although there has been a rise in diplomacy over the last 200 or so years, unfortunately we still have conflicts—not as much conflict in the last 20 or 30 years as in the horrific 40 years before, but nevertheless there are still trouble spots around the world. International humanitarian law developed within the limitations on the use of force in an attempt to minimise the horror, particularly in response to the conflict of World War II, where we saw so many civilians die—particularly the Russians, but throughout the world. The doctrine of proportionality requires a response of force to be proportionate to the aggression that precipitated such force. This doctrine accepts wartime civilian casualties as unfortunately inevitable, but the doctrine of proportionality requires that civilian casualties inflicted by military strikes not be excessive in relation to the anticipated military advantage gained by the strike. The rules of engagement are specific to the conditions of a particular area of operations, and the actual text of any set of rules of engagement is classified and therefore not publicly available. For instance, if members or senators are overseas on a parliamentary placement program, unfort­unately, unless you have the right military classification, you are not able to see the rules of engagement. Soldiers often keep these on a card inside their jackets, because obviously it could be a problem if those they were fighting against knew the rules of engagement. We do not want the force we are up against to know what the ADF personnel can and cannot do. So the rules of engagement are always classified. Consequ­ently, I was quite surprised to see late last year much commentary in the media about the rules of engagement for our Australian soldiers in Afghanistan. According to the commentary I heard about and read, Alan Jones must have somehow been privy to the military rules of engagement for our soldiers in Afghanistan.

The role of the independent Director of Military Prosecutions came about through recommendations arising from a series of committee inquiries in this particular building, many of which were gravely concerned that military justice was not delivering impartial, rigorous and fair outcomes for members of the ADF. We ask much of our ADF personnel, but the High Court said that we cannot ask them to forgo access to justice. That is obviously a call that this House respects. That is why last year I was very shocked to hear an exchange between the shock jock Mr Alan Jones and the Leader of the Opposition, the Hon. Tony Abbott, where they cast aspersions over the Director of Military Prosecutions and her role in the case against the soldiers who were facing manslaughter charges as a result of an operation that unfortunately killed six civilians in Oruzgan province in Afgh­anistan.

Just to be clear, at Senate estimates hearings Air Chief Marshal Houston, a man who is very well respected by both sides of this House, said that the soldiers were fully entitled to the presumption of innocence and that the Army had gone to unprecedented lengths to support the soldiers and to make sure that they were properly treated in the system. But what did the Leader of the Opposition, the Hon. Tony Abbott, and Mr Alan Jones have to say about this arrangement and the support being provided to the soldiers? The Leader of the Opposition told his favourite shock jock, Alan Jones:

… I'm not sure whether we—

that is, if the Liberal Party were the gov­ernment—

can overturn the decision of an independent prosecutor.

'I am not sure.' That is his statement. 'I am not sure that we can do that.' Thankfully I think there are still people on the opposite side of the chamber who do believe in the separation of powers. Any lawyer worth their salt knows that the separation of powers is a fundamental tenet of the Westminster system. Yet he who would be king, he who would be Prime Minister, then went on to say:

Well, as I said, Alan, I suspect there has been a deep failure by this Government to provide these soldiers with the defence that they are entitled to.

Those are ill-informed comments, baseless comments, dangerous comments on talkback radio. It is cheap populist commentary more befitting a boofhead out in the back bar than the political leader of the Liberal Party. The Hon. Mr Abbott went on to say to his talkback doppelganger:

… because the last thing that people would want to see is soldiers being stabbed in the back by their own Government and I know a lot of people think that’s what’s happening.

Amazing statements, but I am quoting directly. I previously called this statement erroneous in the House. It was then and it remains so now. Yet still—and I do not read the papers religiously every day—I have not seen an apology from the Hon. Tony Abbott, the Leader of the Opposition, about those statements made to the shock jock Alan Jones. In the same radio interview with Mr Jones, who should have known better—I think he was dux of Toowoomba Grammar back in the day, so he is a very smart man; he was a teacher who went on to other things— Mr Abbott then went on to say that he was 'the standard bearer for values and ideals which matter and which are important'. Some standard! Some bearer!

As a standard bearer, the Hon. Tony Abbott might wish to revisit this interview, because it was a particularly galling moment for many people—for many lawyers and for many people involved with the military justice system. I say this as the case against two of the Army reservists charged with manslaughter in Afghanistan will not go to a court martial after a judge advocate actually dismissed the charges. We should all be aware that this outcome was not because of the inappropriate musings of the Leader of the Opposition on the Alan Jones program. This was the result of the military justice system doing its job, and justice was done, as it will be done for the other soldier who is still experiencing the appropriate scrutiny of our Australian military justice system, and the legislation before the House supports that process. I commend the bill to the House.

See this speech in context