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

I rise to speak on the Defence Legislation Amendment (Military Justice Enhancements—Inspector-General ADF) Bill 2014. As noted by the other speakers, this has bipartisan support in the parliament. I commend the earlier speakers.

We have just, in this parliament, been honouring the 100th anniversary of the Gallipoli landing. Parliamentarians have paid their respects to those brave souls who died during that battle, acknowledged those who returned as very different people and also, generally, those who have fought for our country since that battle. Anzac Day is the very appropriate one day of the year when we do that—where we acknowledge our Defence Force personnel. Whilst it is important to acknowledge the past and to commemorate their sacrifice, we should also focus on those who are currently serving or who have recently returned and served their country. But many have returned and are suffering.

Obviously, as a nation we need to look after those who serve currently in the Australian Defence Force—those who may not yet have seen conflict. Obviously, we would hope that they do not, but that is the reality of the troubled world we live in. For those who are serving the country, being ready, willing and able to be sent to a conflict if it arises takes a certain sort of courage. We need to make sure that we look after the current serving members of the Army, the Navy and the RAAF. This legislation is part of that.

There are many professions which are a particular calling. I think that joining the military is one of those where higher standards are asked of you as an individual. Having their own justice system is a part of that. It is a higher calling to join the military but then, once you are in there, there are much higher standards. They are not just like parliamentarians' standards, where if you get in trouble then you are in trouble in the media, or—heaven forbid!—you could be called in front of the bar of the parliament to answer for what you have said. In the military there are particular standards. There have been 17 reviews into aspects of the culture of the Australian Defence Force since 1994. This is because the military always has to get that balance between appropriate justice and reasonable treatment of its service personnel and discipline. This bill is the result of the recommendations from these many reviews and is a small part of the slow and progressive changes being made to the modern ADF.

The purpose of this bill is to expand the role of Inspector-General of the Australian Defence Force and enhance the independence of that role. If we look back at some films, we can see different approaches to military justice. If we start back at the Boer War and look at Breaker Morant, we see that whilst the service personnel were granted their own military representative these were not fully briefed and they did not have the resources. There are other examples, such as A Few Good Men,where,while it is a Hollywood version, the focus is on making sure that the service personnel receive proper representation. This might be testing a few people, but they might remember the Blackadder episode where Blackadder was in trouble for shooting a pigeon and the person who was making the decision about the pigeon being shot was actually the commanding officer. This legislation before us is about making sure that there is a different chain of command. Rather than the legal representative answering to the commanding officer, instead there is seen to be an independent representative who can give frank and fearless advice given to their client, to the ADF member.

The military justice system is, by necessity, quite separate and distinct from our ordinary justice system. It obviously has the same principles but it serves a very important service and is crucial to the ongoing strength and efficacy of the Defence Force. If the military justice system fails, the consequences can be quite catastrophic. It can result in loss of morale and, critically, may eventually result in damage to operational effectiveness and could even put lives at risk. Morale is a very important component in the military, so it is important to get the balance right, particularly in Australia where our fighting forces have always been recognised around the world as not only independent and able to think on their feet but also a very effective fighting force.

The role of the Inspector-General of the Australian Defence Force was established in 2005. The inspector-general can not only inquire into matters directed by the Chief of the Defence Force but also into other ongoing military justice requirements: performance reviews if something has arisen; advising on matters concerning the military justice system, especially in terms of making improvements; and promoting military justice values across the Defence Force, which is all about making sure our soldiers, our sailors and our airmen are a tight unit. Obviously, the office of the inspector-general is independent of the normal chain of command, but it still fits within the broader defence umbrella. I note that there is a particular use of legal officers who are reservists who play an important role in this.

It was the Labor government in 2011 that announced a suite of reviews after an incident commonly referred to as the ADFA Skype incident. The defence minister at that time, Stephen Smith, said:

It is essential that the ADF and Defence promotes and enforces the highest standards of behaviour and creates an environment where complaints can be aired and appropriately addressed.

One of the amendments that the bill before the chamber will make to the Defence Act is in the description of the objects of part VIIIB. The amendment will make clear that the office of inspector-general is to provide the Chief of the Defence Force with a mechanism to audit and review the military justice system that is independent of the ordinary chain of command. It will also provide an avenue by which failures and flaws in the military justice system can be identified, examined and remedied. The bill consolidates the existing functions of the role of inspector-general and provides for some new functions. The amendments also limit the power of the inspector-general to only undertake such functions as are prescribed by the regulations. A function cannot be prescribed by regulation unless it relates to the military justice system or to complaints made by members of the Defence Force where the relevant complaint is about a decision, act or omission in relation to the member's service in the Defence Force, or deaths of members of the Defence Force where the relevant death appears to have arisen out of, or in the course of, the member's service in the Defence Force.

One of the crucial processes required to maintain the operation of the Defence Force is the redress of grievance process, or ROG. It is trite to say that a member of the Defence Force is required to obey lawful directions given by a superior officer. That is a strict obligation, and there are obviously consequences if the order is not followed. But when such a strict obligation rests on a person in the course of their duties, there must also be a form of redress for defence personnel where they consider that a decision, act or omission has had a detrimental effect on him or her. This is the redress of grievance process. The bill before the chamber addresses this process.

The inspector-general will conduct the redress of grievance process. The bill removes the ability to seek a review of the redress of grievance process by the Chief of the Defence Force but retains the right to have an external review by the Defence Force Ombudsman. The inspector-general is given wide powers of inquiry, including the power to end an inquiry once he or she is satisfied that the continuation of that inquiry is not warranted. The exception to that power is if the minister has asked the inspector-general to conduct the inquiry, in which case there will be no power to conclude the inquiry before it has been completed, getting that balance right between the parliament and the military process.

There have been some questions raised in some of the reviews about whether members of the Defence Force would see the inspector-general as a separate role or would see him or her as being too embedded in the ADF as a former senior ADF member. The independence of the position is reflected in the reporting requirements of the inspector-general. This bill ensures that the independence of the inspector-general is beyond question. The inspector-general, after the amendments, will effectively report directly to the parliament.

Under the Defence Act the Governor-General has power to make regulations with regard to the procedures and powers of the inspector-general. The bill provides that those powers include the power to make regulations compelling a person to appear as a witness before the inspector-general and to compel that witness to answer a question, even if the answer may incriminate them. As I said, it is a calling to join the military, but there is a higher onus on ADF members. Those amendments are important for the proper investigation of any inquiry by the inspector-general, especially where teamwork and morale might mean that people are not willing to go outside their group. ADF personnel commonly work alongside public servants and civilian contractors, as anyone who has been to a modern military base would recognise. Any inquiry may include evidence from people other than ADF personnel. Without regulations to compel that evidence, the inspector-general would only compel ADF personnel to give evidence in an inquiry.

The power to compel a person to appear at an inquiry and to answer questions is arguably a severe infringement on their civil liberty. To balance that power, the bill provides that any evidence given by a witness in those proceedings will not be admissible against the witness in any civil or criminal proceedings in any federal court or court of a state or territory or proceedings before a service tribunal. We can get as much information as possible into an inquiry.

This bill provides powers and procedures for the Inspector-General of the Australian Defence Force that will ensure the independence of that office and the proper and thorough investigation of complaints. It also ensures that our obligation to our Defence Force personnel under the International Covenant on Economic, Social and Cultural Rights to provide access to a statutorily independent person for investigation or inquiry and the International Covenant on Civil and Political Rights to provide a fair hearing of any criminal charges against them are being met.

I would like to acknowledge the many people who make the military justice system work. They are, particularly, the legal officers, especially the reservists—many of whom are at the bar or in private practice and then take on duties representing ADF personnel, usually for much lower rates of pay than they would receive in their daytime job. I want to acknowledge one in particular, David Montgomery, who was until recently the panel chair for South-East Queensland. He has done a great service to this nation and continues to do so in other capacities.

This bill is the result of a process initiated by the Labor Party, and I am happy to commend the bill to the House.

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