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

I rise to speak on the Defence Legislation (Enhancement of Military Justice) Bill 2015, and thank the member for Bass for his contribution. Without wanting to start a fight, I do note that there is a member of the Navy here. My understanding is that the Navy is the oldest service—but I will leave that for the Army and the Navy to sort out! All I can say is that, irrespective of age, the RAAF is the top-quality service of the three! But I do thank the member for Bass for his contribution and also the member for Canberra. I echo her kind words about Lieutenant General David Morrison, which I will come to in more detail later in my speech.

When it comes to discipline in the military, obviously it is important to get the balance right. Discipline and the military must go hand in hand. Without a system to maintain and enforce service discipline, commanding officers would be in trouble. They would be unable to maintain command. That could be in flying low through the valleys of Afghanistan in a C-17; or out in the Southern Ocean in years to come—perhaps in one of our Air Warfare Destroyers; or as a member of a Combat Engineers Regiment involved in the reconstruction task force in Afghanistan outside Tarin Kot; or even, perhaps, fighting for a parking spot early in the morning over at Russell!. Wherever they may be it is important that a commanding officer can maintain command.

The military justice system is, by necessity, quite separate and distinct from the ordinary justice system. It serves a very important role and is crucial to the ongoing strength of our valued Defence Force. If the military justice system fails the consequences can be quite catastrophic. It can result in a loss of morale and, critically, may eventually result in damage to operational effectiveness.

This bill amends the Defence Force Discipline Act 1982—the DFDA—and the Defence Act 1903. The amendments implement measures recommended by the Defence Force reviews. As detailed by the previous speaker, these have been going on for over a decade. In fact there have been more than 17 reviews into aspects of the culture of the Australian Defence Force since 1994, and the justice system has been part of that. So this bill is a result of the recommendations from those reviews and is a small part of the slow and progressive changes being made to the ADF.

That is why I wanted to return to the Chief of Army, Lieutenant General David Morrison, who is retiring this month. He has been a big part of that changing culture, obviously progressed by Air Chief Marshall Mark Binskin, the current CDF, and also by David Hurley, Angus Houston, Peter Cosgrove and many before him. But, like the member for Canberra, I particularly want to mention that fantastic speech by Lieutenant General David Morrison. It was a speech that went around the world—a riveting speech. When I post this speech on my web page I will put a link to that speech, because it is such a compelling speech for all Australians. Obviously, it was directed at people under his command, but it speaks to all Australians. That line, 'the standard that you walk past is the standard you accept,' is a good guide for all Australians in what we accept, whether you are in the military or outside it.

Although the military justice regime is quite separate from our system of civilian justice, Defence Force personnel are part of the wider community and it is important that the military justice system recognises where the systems overlap and that the fundamentals in terms of fairness, right to representation, natural justice and all those other values that we take for granted in Australia are maintained.

This bill amends the Defence Force Discipline Act to characterise some service offences as offences against the laws of the Commonwealth. Where required under legislation to disclose convictions of Commonwealth offences, service personnel will now have to disclose convictions for service offences by a court martial or Defence Force magistrate. They will be required to disclose that the convictions are a service offence. Convictions of service offences by a summary authority will continue to be for service purposes only.

Convictions by way of court martial or Defence Force magistrate will also be able to be disclosed by a service chief or authorised officer. The fact of the conviction and information surrounding the conviction will be able to be communicated to a Commonwealth, state or territory authority for the purposes of investigating, prosecuting or keeping of records in relation to Commonwealth, state or territory offences.

The bill creates some new service offences. A new offence of assault occasioning actual bodily harm will be created. Existing provisions of assault under the service offences do not contemplate assault in an aggravated form although, obviously, once people drive out of their base that would be the reality. A common practice had developed in situations where the assault was aggravated that required a complex use of both the DFDA and the Crimes Act 1900. Different criminal responsibility applied to the Commonwealth and territory offences, leading to confusion and complexity in the prosecution of the offence—good work for legal officers but not necessarily the best thing for the military. The additional provision of one offence under the DFDA will simplify this procedure. The offence of aggravated assault recognises the serious harm that has been visited upon somebody and, as such, will attach a maximum five-year prison term.

The other new offence under the DFDA created by this bill is the offence of unauthorised use of a Commonwealth credit card. The offence was previously contained in the Financial Management and Accountability Act 1997 and included Defence related credit cards. That act has been repealed. The new offence will replicate the old section 60 of the Financial Management and Accountability Act 1997, but with allowances for the military context and consistency with the DFDA.

Consequential amendments will be made to continue the prescribed offence regime that enables a summary authority to try minor instances of the offence.

I know many legal officers, especially from the Reserve, who have had to deal with these offences where the first thing young recruits, from the Army at Kapooka or the Navy at Cerberus or the Air Force at Wagga, are issued with is a credit card, which is a good tool if used correctly, but then they might get a little excited and end up misusing that credit card. Rather than have the full force of the nation down on the shoulders of a young 17- or 18-year-old person making a poor decision, we are able to deal with it in more of a management way rather than end their military life forever. The more serious charges will still be tried by way of court-martial or Defence Force magistrate, and this offence will also carry a maximum five-year term of imprisonment, but the bill recognises the silly mistakes that young people can sometimes make.

The bill also amends other provisions to create more certainty, such as clarifying the fault elements of the offence of commanding or ordering a service offence to be committed. In that offence, a prosecution can be successful even if the ordered service offence was never committed. This amendment was based on the incitement offence under section 11.4 of the Criminal Code Act 1995. Another amendment, required due to the intersection of the military justice system and the criminal justice system, is to remove the power to issue recognisance release orders and instead make provision for a service tribunal to impose a non-parole period in respect of a term of imprisonment that is imposed. The difficulty with recognisance release orders arose because, once a Defence member is sentenced to imprisonment, they are automatically discharged from the Defence Force. Imposing a non-parole period at the time of sentencing will overcome this problem. A practical amendment will introduce to the DFDA the system of penalty units currently used in the criminal justice system. This will ensure that later amendments will not be required to accommodate changes to the consumer price index.

The position of Director of Defence Counsel Services is not presently statutorily recognised. This bill will amend the Defence Act 1903 to provide for that statutory recognition. The functions and responsibilities of the office will be outlined in the provision, which will include the provision of legal representation and advice to persons charged with a service offence and the maintenance of a list of legal officers available to assist persons in custody for an alleged service offence. I know many of the people on the panel in South-East Queensland who provide those services. I commend them on their great service. This is a particularly important amendment as it will promote the fairness and impartiality of the Defence Force disciplinary system by enhancing the actual and perceived independence of the Director of Defence Counsel Services. So, rather than a commanding officer also being in command of the legal officer, reporting back and sometimes perhaps taking other things into consideration than the rights of the person they are defending, this parallel system will provide much more independence.

A historically problematic issue in the military justice system was the establishment of the Australian Military Court. It was established by the Defence Legislation Amendment Act 2006. That amendment act passed through parliament after a lengthy inquiry by the Senate Foreign Affairs, Defence and Trade References Committee into the effectiveness of the Australian military justice system. That Senate inquiry recommended a permanent military court be created in accordance with chapter III of the Constitution to ensure independence and impartiality. The government response at the time was to agree to a permanent military court, but it did not support the creation of such a court under chapter III. So the Howard government in 2006 introduced the amendment bill that gave effect to the government's response. There was subsequently a High Court challenge to the validity of the Australian Military Court and it was found to be unconstitutional—that is, a court not in accordance with chapter III of the Constitution.

In a High Court case, as referred to by the Australian Institute of Administrative Law, a sailor, sadly, got into a bit of trouble out at Roma—so it is good to see that the Navy are present in the chamber as we bring this legislation through. Sailor Lane was charged with the offences of one count of an act of indecency without consent—this was certainly the first time I had ever heard of tea-bagging—which was contrary to section 61(3) of the DFDA as applying to section 62 of the Crimes Act 1900, and also one count of assaulting a superior officer contrary to section 25 of the DFDA. Assaulting a superior officer is the crucial thing here because, obviously, this is something that we do not have outside of military bases. It is military in nature, but it goes to the core aspect of command relationships, something touched on by the member for Bass in his speech.

It is worth considering as we look back for the 100-year commemoration of World War I. I am always reminded of that scene from Gallipoli, which was based on the real events that happened 100 years ago—in August, I think—at The Nek at Gallipoli, where the Light Horse were sent over in four waves of 150 Victorians and Western Australians. They were all but wiped out. I think the 8th Light Horse had 234 of 300 killed in a matter of minutes. That is an extreme example and the modern military would obviously never contemplate such behaviour again, but it goes to the core of how important command relationships are. I mention the example of Gallipoli because all of those people who went over the top into the Turkish guns, with virtually no ground captured and no enemy killed, were volunteers. None were conscripted at all; all were volunteers. With the modern military, 100 years on, we still have that—they are all volunteers—but it is still important to have that strong command relationship.

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