Janelle Saffin (Page, Australian Labor Party) Share this | Hansard source

I rise to speak in support of the Military Justice (Interim Measures) Amendment Bill 2011. I understand that it has bipartisan support, but it is a shame that when we have something for which there is bipartisan support we get straight back into the blame game, because if I were to go back to the history of this bill I would be able to talk about the advice that was in a Senate committee report in 2006 whereby that foreign affairs, defence and trade committee concluded with the following comment. I note this was when the court was in the establishment phase under the previous government when it was decided that they would set up a military court and that there was advice at the time that it was at a serious and strong risk of constitutional challenge and would be struck down—and that is what happened. I will quote from that Senate committee report at the time:

Overall, the committee believes that the government settled for the barest minimum reforms required to its service tribunals to escape a constitutional challenge. In so doing, the committee takes the view that, in striving for the minimum, the government has not removed the risk that at some stage the High Court may find that the AMC—

the Australian Military Court—

is constitutionally invalid.

That was pretty clear and there was other advice around at the time and, in fact, the now Attorney-General, in another role at that time in opposition, had also put forward that advice. So I make those comments by way of providing a context for where we find ourselves: inheriting a system that has been struck down as constitutionally invalid, and so we have had to go back and validate the previous system so that actions taken whilst the Australian Military Court set up will be legalised.

As for what this bill is about, it is quite specific to particular areas. It is to provide tenure of up to two years for the Chief Judge Advocate and the judge advocates. It was some time back when I looked at the explanatory memorandum and other documents and there was another trigger. It was up to two years or subject to a determination, whichever one came first. In the material I now have I see it is for two years or until the Minister for Defence declares, by legislative instrument, a specified day to be a termination day, which is sooner. The appointments are due to expire in September this year; hence we need this bill. I understand that the redrafting of the bill for the Australian Military Court is very close and what this bill also does is make sure that the appointment, remuneration and entitlement arrangements for the Chief Judge Advocate and judge advocates continue. I also understand that when the AMC legislation comes before us we will have a permanent, effective and constitutionally sound system of military justice for Australia's defence forces. That is a good thing because that is what is needed. There is a lot that could be said about this, but I have spoken on this matter once before in this place and outlined my thinking on it and there is no need for me to go through that again. It is really clear that we do need certainty. Once we have the Australian Military Court justice system in place it will be a good thing for all as well as for our soldiers who serve and operate under it. It applies not only in a theatre of war or in a conflict but in a whole range of areas of their service life, and they need to have that certainty. There are a whole lot of things that happen in terms of discipline and disciplinary actions within the Australian defence forces, and a lot of that will continue as well. It was deemed necessary by the defence forces— (Quorum formed) A key provision of this bill is that it amends schedule 3 to the Military Justice (Interim Measures) Act (No. 1) 2009, which contains application and transitional provisions. Importantly, it refers to the commencement day of the application provisions as being the day that the No. 1 act commenced, which was 22 September 2009.

The bill introduces, as I briefly mentioned before, the termination day which is imported into it. Also, clause 2 of schedule 3 deems a person who held office as a chief military judge immediately before the decision in Lane v Morrison to be the Chief Judge Advocate. It is a bill that provides certainty in case it is needed for the tenure and remuneration of the Chief Judge Advocate until we have the final bill before the House. I commend the bill to the House.

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