Andrew Nikolic (Bass, Liberal Party) Share this | Hansard source

I also associate myself with the remarks of the member for Canberra, not just in relation to the outstanding service by Lt Gen. David Morrison but, of course, the new Chief of Army, Lt Gen. Angus Campbell. It is good to put his name on the record. He is a product of the 3rd Battalion of the Royal Australian Regiment, a member of our Special Forces, and a man who has not only served our country honourably in uniform but also within the interagency of the Australian bureaucracy. I am sure he will make a magnificent contribution as the incoming Chief of Army.

I appreciate this opportunity to address the House on the matter of the Defence Legislation (Enhanced Military Justice) Bill 2015. This bill is important to both Defence and to the wider democracy it serves, in addressing a range of matters, particularly the crossover of the military and the law. As someone who spent over three decades as a member of the Australian Regular Army, it is an issue that is certainly close to my heart, and it is something I will continue to maintain an abiding interest in.

However, before I focus on the specifics of the bill itself, I would like to make some general comments about the quintessential relationship between the dual professions of the military and the law. In many ways, Australia is a most fortunate country. Foremost amongst the reasons for this is the long-acknowledged and widely-accepted role of our modem military. In essence, unlike in some other nations, it sits ever ready, both vigilant and prepared, but always quietly in the background. In Marine Corps parlance it is semper fidelis, or 'always faithful'. Our Army's generals, and their service counterparts, are focused wholly on their military roles, not on supplanting civilian politicians or the bureaucracy that supports them. Around the globe, this acknowledged and 'set in stone' relationship between a civilian freely-elected government and a subordinate professional military is an increasing rarity. While Australians take defence and national security very seriously, including appropriately honouring our war dead and their sacrifice, we are in no way a military or even a militant nation. While the Australian Defence Force is relatively small in size, it is very professional and is committed to the nation it quietly and reliably serves.

This bill affords me the chance to highlight important elements of our military, the evolving military legal system, and also to curtail some myths and/or misimpressions of it and about it. The first such myth is that the military and the law have not very much to do with one another, or, in the very least, are strange or mismatched bedfellows. This, of course, is a fallacy. A professional military, rightly governed and directed by its civil masters, is rigorously, even punctiliously, attentive to both the rule of law and to the rules of war. Longstanding and diverse concepts such as the law of armed conflict, courts martial and rules of engagement all attest to this close and overlapping relationship. Indeed, a professional military and the law are very much connected, both externally—that is, the way a defence force functions as part of society—and internally, in the way it operates legally unto itself. The law is therefore ever present and in lockstep with the military.

The parliament, of course, wields the elements of our national power, which can be distilled to four things: the economic element of our national power—things like our fiscal, monetary and trade policies, security assistance, foreign aid, embargoes and so on; the diplomatic element of our power, resident most notably in the Department of Foreign Affairs and agencies like Defence; the informational element of our national power; and, in extremis, the military element of our national power. I speak of not just times of conflict, but also of its role to deter, compel, care for the homeland, or engage in peace support operations.

When it comes to the military dimension of our national power, the law determines how force can and should be applied. At the other end of the spectrum, it is woven throughout all the rules and regulations that underpin and dictate the lives of our service personnel. This bill focuses on the latter of these two dimensions: reform and amendment to internal legal arrangements.

However, just as important as what is contained in this bill is what its existence both connotes and demonstrates. This is the government's continuing commitment to the ADF and to the men and women who serve it, and, through it, all their fellow Australians. As the last decade has shown, the nation needs the Australian Defence Force today more than ever. And the tempo of their efforts is unlikely to abate in the near- to mid-term.

The spectrum of tasks we expect our troops to undertake is broad and complex. For example, our troops help to build bilateral and multilateral relationships, through joint training and exchanges. They provide domestic support to the civil power following floods and bushfires. They are always called upon to be a first responder when there is a humanitarian-assistance and disaster-relief contingency in our region, and there are many examples of that: Pakistan Assist; the Banda Aceh tsunami; the crisis at Fukushima; the flooding in Oro province; Tonga, and other regional areas. They have even been helping to stop Patagonian toothfish poachers and the exploitation of regional exclusive economic zones.

In one of my last jobs before coming into the parliament, I was a first assistant secretary in the International Policy Division in Defence, where we looked after our Defence Cooperation Program encompassing the 23 Pacific patrol boats that we have given to regional countries to help ensure that they can effectively police their exclusive economic zones with those Pacific patrol boats. We have seen the Defence department support the government of Timor-Leste in their time of need, further the cause of good governance in Solomon Islands, help stop people smugglers in our near region and rescue thousands of people at risk of drowning, and work on UN and multinational force operations and counter-piracy—everything through to high-intensity combat operations in places like Iraq and Afghanistan.

So the point of all this is: our expectation of our troops is great, which imposes an obligation on this parliament to continually support improvements to both the Australian Defence Force and our wider national security apparatus, whenever and wherever the circumstances warrant. So let me now highlight what is necessary and what lies at the heart of this bill, to explain how Defence might be improved by it and to touch briefly on the circumstances that lead to its consideration today.

This bill amends legislation relating to the military justice and discipline system and the overarching military justice system. The bill contains a number of modest, but no less important, amendments and reforms to the Defence Act 1903, the Defence Force Discipline Act 1982, and the Military Justice (Interim Measures) Act (No. 1) 2009. As the previous speaker highlighted, there are 11 key amendments and reforms, which together improve the overall quality and functioning of the current defence justice system, and I will just touch on those briefly.

The reforms clarify the legal character and status of service convictions by providing that a service offence is an offence against the law of the Commonwealth. The bill identifies the situations in which convictions for service offences may be disclosed under the Defence Force Discipline Act. It creates two new service offences from existing criminal offences, those being 'assault occasioning actual bodily harm' and 'unauthorised use of a Commonwealth credit card'. It clarifies the elements of the existing service offence of 'commanding or ordering a service offence to be committed'. It replaces the system of recognisance release orders with a system of fixing non-parole periods, which is relevant to the punishment regime. It replaces the system of fines for persons who are not a member of the Defence Force with a penalty units system in keeping with the criminal law system. It corrects several technical errors in expression that have impacted on discipline and which arose through previous amendments to the Defence Force Discipline Act. It removes from the DFDA obsolete provisions that refer to the discipline system operating prior to 1985. It provides for statutory recognition of the Director of Defence Counsel Services, their role and functions, and machinery provisions to support their administrative duties. It updates some terminology used in the Defence Act and applies the meaning of some words introduced in the act with their meaning in the Defence Force Discipline Act. It also extends the appointment of the current Chief Judge Advocate and full-time Judge Advocate for a further two years under the Military Justice (Interim Measures) Act (No. 1).

Importantly, none of these measures are apt to prove controversial in nature, either in or outside the defence environment. Instead, they might reasonably be considered as important but minor adjustments which in unison will support the further modernising of a current longstanding and already functioning military justice system.

This bill has reached its legislative destination after a long journey. The nature of this journey also reflects both careful consideration and wide consultation by not less than three governments, in one way or another, with the genesis of this activity taking place a decade ago. Indeed, a 2005 Senate report into the effectiveness of the military justice system recommended the creation of a military court under chapter III of the Constitution to deal with serious service offences in the Defence Force. In response to the report, the Howard government created a military court. For various reasons, a non-chapter-III court was created in 2007 and operated until 2009, when the High Court declared the court to be unconstitutional.

In response to the High Court's decision, the Rudd government reintroduced the previous superior tribunal system by the Military Justice (Interim Measures) Act (No. 1) 2009 as an interim measure until a military court could be established. Military court bills were introduced into the parliament in 2010 and 2012, but the bills lapsed on each occasion when parliament was prorogued. The interim system has continued to operate since. It is working satisfactorily and the fundamental basis for its continued operation is sound. But, because the system has remained 'interim', the statutory appointments of the Chief Judge Advocate and the full-time Judge Advocate have remained ad hoc and it has been necessary to legislate every two years to extend them. These appointments are due to expire on 21 September 2015, which means that further legislation is now required to extend them to around 30 September 2017. The roles of the Chief Judge Advocate and the full-time Judge Advocate are essential for the day-to-day functioning of the superior tribunal system, which would be compromised by any lack of continuity.

While the legislative journey to these reforms has been somewhat protracted, the important thing is that this bill is now in a position to make a raft of positive incremental improvements to the current defence justice system. The benefit of this bill is that it will act to make an existing defence justice system better still. No-one stands to lose by its passage and implementation. Rather, the reverse is true, with the direct and immediate beneficiaries being the members of the ADF themselves, through the enhanced clarity and certainty provided by this additional regulation and reform. In addition, I ask that the House note that passage of this bill will impose no financial burden on the Commonwealth. It therefore constitutes a much-sought-after rarity: benefit without cost or anticipated controversy, either now or in the future.

I conclude by noting that the Army elements of the ADF are as old as Australian Federation itself, with both Navy and Air Force just a little older still. Over the course of a century and more, our Defence Force, in all its forms and incarnations, has been continually refined, adapted and improved and, partly as a consequence of this, has never once let our nation down. Today's legislation is therefore but the last in a long series of bills, each designed in its own way to improve the professional performance of Australia's military, and the lives of the men and women who serve it and, through it, us so very well.

I have much pleasure in commending this bill to the House.

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