Harry Jenkins (Scullin, Australian Labor Party) Share this | Link to this | Hansard source

The original question was that this bill be now read a second time. To this the honourable member for Barton has moved as an amendment that all words after ‘That’ be omitted with a view to substituting other words. The question now is that the words proposed to be omitted stand part of the question.

Joanna Gash (Gilmore, Liberal Party) Share this | Link to this | Hansard source

It is a tenet underpinning our judicial system that justice should not only be done but should also be seen to be done. The military justice system forms part of our legal system and should not be seen as occupying a place outside those parameters, so I welcome the Defence Legislation Amendment Bill 2006 with some personal observations, particularly in light of some recent cases that gave rise to the public perception that somehow the military operated under a different set of rules to the rest of us.

Certainly the function of the military has to be seen in the context that, by nature of its calling, unique circumstances will be presented that cannot always be dealt with in the same way as civilian matters. The calling of the military imposes certain constraints that do not always allow matters to be dealt with as transparently as we would wish. Issues such as security and intelligence matters, strategic considerations and sometimes commercial considerations impact on the process. Establishing any military system of justice requires walking a tightrope between two imperatives. One imperative is that an effective military machine requires discipline as its very bedrock. The other imperative is that human dignity is not negotiable.

When our Australian men and women volunteer to serve their country by enlisting they know they do not throw away their right to be treated with common decency. But they also know that in the military everyone must pull their weight and obey lawful commands irrespective of his or her valuation of the worth of that command. The Defence Force encourages initiative; it knows that intelligent, well-trained men and women are much more effective than unthinking, docile personnel. At the same time, these defence forces recognise that no-one knows all the competing issues or the reasons behind orders and commands. Here then we have a bill which does credit to those who have worked on it and recognised the competing imperatives.

I could speak on the many important improvements in this bill, but to my mind the improvement that encapsulates the approach made by those who drafted it is division 4. Division 4, as you all know, provides for a military jury. This is a novel step for the Army, Navy and Air Force. The provisions of division 4 are very likely a first step—all novel propositions are—and I believe, in time, will take shape. Later there may be enhancements as we see it in operation.

There are those, I have no doubt, who would have argued that the provision for a two-thirds majority verdict in a jury of six, as originally proposed, tends more to convictions. The government has now amended this to provide for a majority decision of five out of six members, requiring a higher degree of consensus on the part of the jury. In serious criminal matters in ordinary courts, the requirement is 100 per cent or, at worst, five-sixths—10 out of 12—to convict. Those who argue this might well have a point. The penalties for such things as mutiny are such that great exactitude and certainty should be demanded of any verdict. However, the opportunities for appeal and even further appeal will, I believe, prove a sufficient safeguard.

In fact, the option that a person who has been charged with a class 3 offence—one that would be heard in a civilian court—has a magistrate sitting alone or elects to have a jury hear his case is an option that many a person in civilian courts would wish to have. This issue alone demonstrates the lengths that the government is determined to go to ensure justice for military personnel.

This bill covers many new matters, such as video links, but to my mind the introduction of a jury—its mandatory use in class 1 offences and its optional use, at the option of the accused, in class 2 and 3 offences—is a great step forward. A jury, as experience and research show, develops an ethos of its own. It takes its work seriously, it is aware of the mighty difference in strength of each side and again and again it has been the bulwark of true liberty. The framers of this bill should be commended, because non-commissioned officers can also serve on a jury.

I am proud to voice support for this bill. You can put it in ornate legal language or in philosophical terms but the real impact of this bill is that our servicemen and servicewomen will get a fair go. A fair go—that is all Aussies ever ask for. That is what this bill is designed to do: give them a fair go. So it is no surprise that, whilst the majority of the recommendations that were put by the Senate committee inquiring into the effectiveness of Australia’s military justice system were adopted, the government did not adopt some recommendations, so as to preserve the organisational effectiveness of the military. It is largely a jurisdictional question, with some practical limitations given the nature of the conduct of warfare. The last thing we want is to compromise the military’s operational effectiveness by undermining the authority given to commanders and the ability to react speedily when the circumstances dictate. It may be all very well in a peacetime environment, but conflict presents an entirely different prospect, so a uniform military justice code has to be able to meet all contingencies in a consistent manner. Whilst that might compromise the notion of transparency and due process, there are times when the military may not be able to afford such a luxury. In its response to the recommendations from the inquiry, the government said this:

The purpose of a separate system of military justice is to allow the ADF to deal with matters that pertain directly to the discipline, efficiency and morale of the military. To maintain the ADF in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, sometimes, dealt with more severely than would be the case if a civilian engaged in such conduct.

I think it is generally well accepted that the military operates in an environment where the rules that apply to civilians cannot apply to soldiers if we want an effective fighting force. The soldier, by his training, is torn between the values that his family and community have instilled in him and the imposition of military conditioning on those values. The thread of the government’s basis for disagreeing with specific recommendations is the necessity to maintain effective teamwork, and that means demonstrating that the military, whilst it looks after its own, also metes out punishment towards its own. It is a close-knit community whose cohesiveness is integral in maintaining an effective fighting machine. This bill is an initiative that is long overdue, and I commend the government on its vision and foresight.

Jennie George (Throsby, Australian Labor Party, Shadow Parliamentary Secretary for Environment and Heritage) Share this | Link to this | Hansard source

Mr Deputy Speaker, I have been placed in a position where debate is occurring on a very important issue to do with future changes to procedures involving our Australian Defence Force personnel, and I am at somewhat of a loss to understand why the debate may be curtailed at this point in time. As I understand it, we have an amendment moved by the shadow defence minister in the second reading debate on the Defence Legislation Amendment Bill 2006 that says:

That all words after “That” be omitted with a view to substituting the following words: “while not declining a second reading for this Bill, the House believes that as the provisions for the establishment of an Australian Military Court are not in line with Chapter 3 of the Constitution as recommended by the Senate Foreign Affairs, Defence and Trade References Committee report of June 2005, and as the appointments to the court and juries are restricted to serving military personnel, the new court can never be separate from the chain of command and the provisions of the Bill therefore maintain the longstanding unsatisfactory compromise which denies the true independence, fairness and objectivity essential for the proper functioning of the military justice system”.

In earlier debate on this bill, the shadow minister for defence enumerated at some length the opposition’s claims as to why the bill before us is insufficient in its scope for us to be able to support it without the amendment moved by the shadow minister. I understand, Mr Deputy Speaker, that the member for Werriwa is going to amplify the position put by Shadow Minister McClelland. No doubt, following his contribution others on our side of the chamber will elaborate in some further detail the issues that come to us in this bill, if that is all right with you, Mr Deputy Speaker.

Harry Jenkins (Scullin, Australian Labor Party) Share this | Link to this | Hansard source

I thank the member for Throsby.

Chris Hayes (Werriwa, Australian Labor Party) Share this | Link to this | Hansard source

I thank the member for Throsby for that valuable and timely contribution. Labor, as has just been indicated, does have some serious concerns about the Defence Legislation Amendment Bill 2006 before us today. The bill has three main purposes: firstly, the creation of a new military court; secondly, the creation of military juries; and, thirdly, the provision of power for the creation of a Chief of Defence Force commission of inquiry that would investigate all suicides and deaths of personnel in service.

The opposition has raised a number of concerns about the operation of provisions of this bill—provisions which seem to attack the very premise on which this bill is based. In the second reading speech, the Minister Assisting the Minister for Defence stated:

The primary measure of this bill is the establishment of a permanent military court, to be known as the Australian Military Court. The Australian Military Court will be independent of the chain of command, and will replace the current system of individually convened trial by courts martial or Defence Force magistrate. This new military court will be established under the Defence Force Discipline Act.

I considered this statement, which goes to the very heart of what the government is attempting to achieve with this bill, and came to the conclusion that this model does not lend itself to being independent of the chain of command as the minister indicated in his second reading speech to the House.

My greatest concern about this bill stems from the minister’s statement that the Australian Military Court will be completely independent of the chain of command. Let us take a moment to consider the establishment of the new military court in the context of this statement. If we considered the minister’s assertion that the new court will be completely independent of the chain of command in light of the provisions before us—if we systematically went through how this court will operate—I think any reasonable person would arrive at a significantly different conclusion than that which the minister outlined in his earlier statement. It is simply not the case to say that the new military court is independent of the chain of command. It is not even a poor facsimile of independence.

The most significant provisions of this bill which make a mockery of the suggestion of independence relate to the appointment of judges to the court. The bill provides for a Chief Military Judge to be appointed for a term of five years, the appointment of two permanent judges and a panel of part-time advocates. All appointees will be required to have legal qualifications and, in particular, must have military service. The government’s proposal is not all that different from the current system of courts martial or Defence Force magistrates which it replaces.

The government’s model as proposed in this bill does a number of things. It creates the new military court within the Defence Force Discipline Act. Judges must be serving officers of legal experience. The term of appointment is for a period of five years and reappointment will only be in exceptional circumstances. At the conclusion of their term, judges are to be compulsorily retired. If they reach retiring age during the term, they are also disqualified. Part-time judges are not allowed to engage in any other employment outside their duties. If a judge ‘no longer meets his or her individual service deployment requirements’, they may be dismissed. The Chief Military Judge is to be of a rank no lower than a one star general and a military judge is to be of a rank no lower than that of commander or equivalent. In addition, judges are to be appointed by the minister from a list selected by a special committee, which is in turn to be selected by the Chief of Defence Force. This in no way reflects anything like a civilian court and it in no way resembles a model that could be described as truly independent.

I note that certain criticisms of the model were made by the Law Council of Australia, which seemed pretty scathing in its criticism. It criticised the strong perception of a lack of independence, but also made specific criticisms in respect of the practicalities of recruitment and retention. These are criticisms that have come from the Law Council of Australia. In establishing a tribunal, at least the views of the learned personnel who make up that body should be taken into account. If that is not enough, the Judge Advocate General makes this important statement:

... it is now proposed ... that the military judges will have even less independence, so far as their terms of appointment are concerned, than they have under the existing arrangements. ... To now move to five-year renewable terms, which are not automatic ... considerably reduces the actual and perceived independence of the judges ... and greatly impedes the AMC’s ability to develop experience and excellence.

Again, this is the comment of a person reasonably close to the action, so to speak; it should not be dismissed easily when deciding whether this tribunal goes close to what the minister said in his second reading speech in developing greater independence for the new military court. This in no way comes close to resembling anything you would expect to find in a civilian court and it is in no way reflective of something truly independent.

When this matter was examined by the Senate, the report proposed that the court created should be created under chapter III of the Constitution, with permanent judges appointed by the Governor-General to make sure they are absolutely free of the chain of command and the entire military. Instead, the government has tried to use spin rather than fact to perpetuate the myth that this new court will be completely independent of the existing chain of command. It has glossed over the recommendations of the Senate report in an attempt to paper over some of the serious aspects of military justice.

The new court that will be established following the passage of this legislation is, quite frankly, no more independent of the chain of command than the system that it replaces in relation to courts martial and Defence Force magistrates. That is not just my view. That is the view of the Judge Advocate General. While the government attempts to defend this approach by asserting that the military justice system is unique and different to the civilian justice system, it seems that this is nothing more than a poor attempt to avoid the introduction of a truly independent system of military justice that is indeed separate from the chain of command.

One final criticism I would make is that the proposed court is not a court of record. The fact that it is not a court of record seriously undermines the status of the court as a genuine court and judicial authority. That is a serious shortcoming. Given that the court is supposed to be independent, its decisions appellable and its powers substantial, it should be a court of record. Bear in mind that this court will have powers to determine actions brought to it concerning any crime that is alleged to have been committed by military personnel either in this country or when they are deployed overseas. So this body will have considerable power. It will not be constrained simply to disciplinary matters. With that, I think our military deserves to have a military justice system which is superior to the military justice system which currently exists—the one which the government has criticised and says should be replaced by a body of greater independence than that which currently exists.

The introduction of military juries is something different. It is clearly a step in the right direction. The proposal is to have military juries comprising six serving personnel of a rank no lower than that of the accused, with binding decisions by a majority of four. I think that is a positive proposal. Under this proposal there is at least a jury system and, as a consequence, decisions are not solely in the domain of a court martial panel or military magistrates. I think that is a step in the right direction. Trial by jury is widely accepted in our democracy as providing an opportunity for greater liberty and is protected by our Constitution. This is something that goes some distance in providing our military men and women with a greater sense of justice and confidence in the justice systems that they may be subject to during their military life.

Having acknowledged that this is an improvement to the military justice system, there are some differences between military and civilian juries for which good explanations have not been provided. I know that this matter is being considered by a Senate committee. I will be very interested to see what their views are, but I simply record my view that the establishing of military juries by this legislation is worthy of applause.

The serious flaws in the system before us today are symptomatic of the contrasting nature of rhetoric and action when it comes to this government’s dealings with defence and defence personnel issues. In his second reading speech, the Minister for Veterans’ Affairs and Minister Assisting the Minister for Defence noted that, when the Howard government responded to the Senate report into the effectiveness of Australia’s military justice system, the then Minister for Defence noted that the government was committed to providing the best equipment and conditions so that Australia had a modern fighting force. That is a noble position to be adopted by the government. He went on to say:

The government continues to express its admiration and appreciation for our defence personnel and the important, challenging and often dangerous activities they undertake, both here in Australia and in overseas operations.

While I am sure that the sentiments of the minister reflect the views of the government, I cannot let the statement pass without contrasting it to the attitude that the government and the minister took to Labor’s motion supporting Korean veterans seeking recognition in the post-armistice period. The minister is willing to stand in this place and indicate strong support for our troops but he rushed out and made statements in contrast to this with respect to what occurred for veterans who served in Korea post the armistice period. You will recall, Mr Deputy Speaker, that this government has made considerable statements, and probably rightly so, about respect and admiration for our existing troops but I have to say that the proof is in the pudding: the level of support that some of our past serving members of the military have received from this government. It is interesting to contrast the two approaches from the government: on the one hand, supporting and saying that their action in terms of the military justice system is a reflection of that; the other being the different standards that they adopt when dealing with the claim for recognition by those service personnel who served in Korea post the armistice period.

While I have taken this opportunity to point out the contrasting attitudes of the government when it comes to the current and former Defence Force, I should not want to be considered as having a lack of respect for any men or women who have offered their service in defence of the country. On a personal note I make no distinction between current and former service men and women; as far as I am concerned they have, in most cases, willingly put themselves forward to defend our nation’s interests. This is a noble character trait and one deserving of our recognition and support.

Recently I had the opportunity to experience military life personally through my participation in the Australian Defence Force exchange program. I take this opportunity to thank all of the men and women who looked after me during the week I spent at RAAF Base Williamtown, north of Newcastle. In particular, I would like to thank the base commander, Mr Wal Mazzoni, Air Commodore of Air Combat Group, Geoff Brown, and Air Commodore of Surveillance and Response Group, Tim Owen. Spending a week in that environment with people who have been and continue to be deployed overseas, doing quite frankly the things that this country needs to be done, instils a great deal of pride. It did not matter whether they were the air commodores or the base commander I referred to, maintenance personnel or clerks: everybody struck me with their enthusiasm and commitment to duty.

One thing that does strike you when you are going into that environment is that they are all committed to the task at hand, that they all see themselves as having a role. They are not all pilots or navigators but they all make a contribution to the fighting force of the RAAF. I know the member for Lindsay will speak after me and that she is a former RAAF member. I pay regard to their professionalism and commitment. Quite frankly these people showed a dedication during the time I was there and continue to show it on a daily basis, which we as members of parliament and as Australians should be very proud of.

The bill before us to reform the military justice system, as presented by the government, is a missed opportunity. The government has missed a once-in-a-lifetime opportunity for Australia to develop a first-class military justice system for our people which is truly independent of the chain of command. (Time expired)

Jackie Kelly (Lindsay, Liberal Party) Share this | Link to this | Hansard source

I acknowledge many of the comments the member for Werriwa made about our military services, comments which I think are shared by everyone in this parliament. Someone in uniform is different. Being in the military is not the same as any of the other occupations in Australia. That is why we treat our veterans differently from age pensioners or any other people who receive stipends from government—judges or public servants. That is why we have national days which honour victories in battle. When we think of Remembrance Day, Long Tan Day or Anzac Day, we tend in Australia to recognise loss of life, which is an occupational reality for members of the Defence Force. We restrict by these laws a lot of claims that can be made if service personnel lose their life in operations. They are limited to statutory compensation in a way that no other civilian occupations are so limited. So it is natural when we come to a military justice system that we say these cases are special and need to be treated differently. A civilian standard is just not accountable and effective.

If you look at the second reading speech of the Minister Assisting the Minister for Defence on the Defence Legislation Amendment Bill 2006, you see that it is about providing a military justice system that is effective and as fair as possible. In an operational sense, to be effective sometimes is quite contrary to the fairness of things. So it is providing a balance between those two concepts. The most clear example I can give of that is the litigious case that started this whole event, which is known as the ‘Butterworth board of inquiry’. It is notorious in defence circles. There was not a death, there was not a body, there was not a fight, there was not a punch thrown, there was not a command disobeyed, but the military spent $6 million resolving manning issues—$6 million tied up in a military justice system which could have been spent on other assets or personnel for a more effective defence of Australia.

And what was the result of that board of inquiry? A lot of the repercussions resulting from that board of inquiry are still going on. It effectively stopped the careers of some outstanding officers, people who had been fast-tracked for careers throughout the military, and it demonstrated quite clearly the paralysis that had stepped into the command of the military where people were trying to navigate around legal situations. In this situation we had an operational unit that was flying sorties out of Butterworth, which was no longer functional. Yet a commander in that situation coming up from Adelaide could not command because of the legal mire he found himself in. It then went on to subsequent law cases, and I believe one of the cases is still before the courts. In deference to that, I will not make any further marks about it.

But it led to an expenditure of $6 million on lawyers’ fees, on boards of inquiry and on subsequent investigations into the military justice system that quite clearly said that a military justice system needs to be quick, effective and capable of putting command back into operational units. You cannot paralyse the operations of someone in Afghanistan and Iraq for two years. Operations do not work like that. The military cannot work like that. You cannot paralyse an Australian Defence Force command situation when you are putting people out there in the field and with the increasing tempo that we will see over the next 10 years. We need an effective and fair military justice system as much as possible.

I recognise the reasoning behind the amendment proposed by the opposition. They are seeking to reserve some sort of position so that the court cannot ever be separate from the chain of command. It is a very difficult one to manage, but certainly this legislation goes a long way to removing that chain of command issue that was evident in previous proceedings where the people who established the courts martial, ran the courts martial and appeared before the courts martial were all within a command structure where their officer evaluation reports were written by people affected one way or the other by the military justice system.

The minister acknowledges that there will be a need for further amendments to the Defence Force Discipline Act as additional parts of the government’s response to the report are implemented in the near future. That has been recognised. We take on board the opposition’s amendment, but I think the minister has allowed for that sufficiently with what we are doing here. Having left the Defence Force in 1996 and being here in 2006, 10 years later, to finally see the Defence Force get the military justice system it deserves, I say, ‘Don’t delay this any further.’

The military is different. It needs to be fast, it needs to be efficient, it needs to be effective and it needs to be fair. But it also needs to be a responsive unit, deployable in a timely manner, that can mediate in areas where command has failed. It needs to be able to come up with solutions that allow the command to get back in the field. That has been seen on several occasions in military history, particularly with the Butterworth board of inquiry, to be woefully inadequate under the current Defence Force Discipline Act and our subsequent amendments to it.

The new Australian Military Court will be established with appointed military judges who have security of tenure but who still have the ability to be promoted within that time of tenure. I would like to know who is writing their OERs, but that is yet to be resolved I suppose. We are trying to get things separate from the ordinary chain of command. The court will be provided with appropriate paralegal support so it functions independently. It will be a permanent fixture and it will be mobile. It is a fly-away kit that can go to Baghdad, to East Timor or to Afghanistan to resolve things. It can take evidence by video link. It can take evidence over the phone. It can really hustle things along to get to an outcome that is in the interests of military command and control.

Military commanders need to be able to command. It is quite different from any situation in the civilian sector, where someone who is not getting on with a subordinate can put up with a lot of rubbish as they go through unfair dismissal litigation and then come to a resolution and to some financial agreement two years later. Men’s lives are at stake, and the situation needs to be resolved expeditiously and in a disciplined manner that ensures corps’ morale and esprit de corps and ensures that things are seen to be fair and that men out of line are being dealt with appropriately and promptly in time to get the rest of the corps in order so that the situation does not undermine an entire command—as happened with the Butterworth board of inquiry, where not only were the operations of the 10 men on active duty paralysed but also the operations of their commander and the commander of that commander back in Adelaide. Everybody’s operations were totally paralysed in that instance. They forgot the one thing that was central to their operations, and that was command. The military needs to have the ability to issue commands that will be obeyed. ‘Yes, sir, how high?’ is the response that you want and the response that you need to get in the military. That is the type of discipline that you are seeking, and it comes from a very effective, fast, efficient and transparent military justice system.

All our forces are trained in the laws of armed conflict, from recruit training to any promotional level, and they are very good at recognising an unlawful order from a lawful one. They know, under the laws of armed conflict, not to obey unlawful orders, but they need to know that there are very serious and very fast consequences if they disobey a lawful command. These consequences will follow you to Baghdad and to the ends of the world, and they will be happening next week or the next day if necessary in order to get this unit back into shape if there is gross disobedience. So that is what we are dealing with.

I think a lot of speakers today have discussed really over-the-top situations, such as alleging that this tribunal would deal with a rape issue in this hurried manner. Under the Defence Force Discipline Act, the Defence Force has always retained the power to refer those matters to the civilian courts. Clearly, in those matters the Defence Force always cooperates completely with the civilian authorities and allows the prosecution of its members. Equally, we are subject to the rules of the International Court of Justice in The Hague if any of our Defence Force personnel breach any of the Geneva Convention.

This is a long overdue step. It is a start in the right direction, and I recognise that there might have to be more amendments to the DFDA. I am thrilled to see this bill finally coming through the parliament. When I saw that it was finally on the speakers list I felt I had to make a contribution, because the issue was certainly on my mind. I remember in 1996 when, as a newly elected member in my first parliament, I was called to give evidence at the Butterworth board of inquiry, and I certainly mentioned on that occasion that the chain of command in the military justice system was hampering outcomes. The unavailability of part-time and Defence Reserves magistrates was certainly hampering the timeliness of these matters being heard. By having full-time, dedicated judges travelling around Australia and the world we can get these things dealt with in a much more timely manner.

I remember one instance when I was working in the Defence Force where it took 18 months to nearly two years to get a matter heard because of the unavailability of the prosecuting officer, the defending officer and the Defence Force magistrate. It took that long to find a date when they were all available and a five-day window in which the matter could be heard. That should no longer occur. If you have a matter that will take a five-day hearing, you can establish that and have it organised for next week if you want to under this proposed system, rather than being at the vagaries of the private practice of people and other private civilian trial matters.

I do not think I have much more to add to the comments of speakers who have gone before, except to say that I will be very interested to see how this goes. I do hope that the minister, when appointing the Australian military judges, particularly the Chief Military Judge, pays strong regard to the experience of people in the military and their understanding of command and control issues in uniform and on operations. I think the effectiveness of the military in this instance overrides the concerns of the opposition and others on the other side of the House as to the fairness vis-a-vis the civilian court system. They will be as fair as possible under a military operating environment, where certain outcomes and imperatives are essential to the effective operations of the defence of Australia and the prosecution of our defence goals and humanitarian relief overseas. So I strongly commend the bill to the House. I hope it is signed off and given assent this year and that it comes into effect pretty quickly to really start the wheels rolling for an effective and fair military justice system.

Daryl Melham (Banks, Australian Labor Party) Share this | Link to this | Hansard source

My attitude to the Defence Legislation Amendment Bill 2006 can be summarised as follows: if someone puts on a uniform for their country they are entitled to a rolled-gold system of justice, not a second-rate system of justice. I think that, for too long, some compromises have occurred that, frankly, are unacceptable in our modern society. There have been a number of inquiries over the past decade and a number of publicly aired complaints by former and serving personnel, their families and other community members which suggest that the military justice system is flawed. I am not going to name them, but there have been a number.

Each of the inquiries did identify flaws in the ADF military justice system and processes, and they recommended changes. Whilst some of the recommendations have been acted upon, there also appears to be an element of resistance within the ADF which views the military justice system as sound, even if at times it has not been applied as well as we would like. I repeat my view: if you put on a uniform then the least your country can do is provide you with a system of justice that is not a second-rate system of justice. I do not believe that the putting on of a uniform allows the defence forces to compromise on basic principles that in many ways really need to mirror civilian principles.

The Law Council of Australia put forward a submission which I thought identified a number of areas that were worth consideration. Their submission is summarised as follows:

• The structure of the Australian Military Court may lead to problems with respect to the independence of the court and the attractiveness of the offices of the military judiciary;
• The limitation of terms to 5 years is unlikely to overcome these problems and may further undermine the perceived independence of judicial officers ...

I interpose here that perception is important. I think that, in terms of the military, it is important that there is a perception which leads to confidence in the system. That is not to say that actual independence is compromised, but if there is a perception that it is compromised that needs to be addressed. The Law Council also says:

• The minimum rank of Military Judges, compared to the minimum rank of the Director of Military Prosecutions, may undermine the perception of the importance and authority of judges in the Military Justice System;
• Compulsory retirement of Military Judges and the limited scope for continuing practice while serving part-time may limit the attractiveness of the office of Military Judge and diminish the pool of suitable candidates;
• Staffing arrangements and resources for the Australian Military Court should be set down under legislation; and
• The possible extension of 5-year terms may lead to the perception that Military Judges are beholden to the military chain of command or political appointers.

Each of those might not seem important to ordinary members of the community, but they are important because they go to the heart of whether there is perceived independence of the judicial officers involved in the system.

I understand that there are a number of amendments that will be moved to the legislation when we come to the consideration in detail stage, and those will clarify that the Australian Military Court is a court of record. I commend the government on the way it has picked up many of the recommendations of the Senate committee and the subsequent comments that have led to these amendments that will be put before the parliament for this bill.

This is not an area where either side of politics has the high moral ground. This is not an area where either side of politics should politicise. This is an area where, as a parliament, both the government and the alternative government should come together to ensure that there is a piece of legislation that passes this parliament that has the overwhelming support of this parliament in sending a message to the community and to those in our armed forces that the parliament is as one on these issues. So I think it is important that the government has responded to a Senate inquiry and evidence that at some times exposed some problems with the way the system was operating.

But I also think that senior people responsible for this area within the armed forces should also accept that you cannot live in the past—you cannot hang onto a culture that is out of sync with community standards and community values and that does not allow your service personnel procedural fairness and a proper consideration of matters that might be heard relating to them. Yes, sure, there are instances where people might not be found guilty under the system. That is not the end of the world. People should be given the benefits of a proper process and reasonable doubt in relation to these matters. I understand that my colleague at the table, the member for Bruce, will use some anecdotal examples—and I do not want to steal those—from the past.

I think it is a good thing that these changes have resulted from an inquiry that was conducted by both sides of politics in the Senate in a very conscientious and respectful way for the services. It seems to me that you get yourself into problems if you go into denial mode and seek to justify practices on the basis of: ‘That’s the way we do business. If we didn’t do it this way, it would create problems for us, or it would be too much of a hassle.’

The second reading amendment to the Defence Legislation Amendment Bill 2006, which has been moved, is critical of the fact that the Australian Military Court is ‘not in line with chapter III of the Constitution as recommended by the Senate Foreign Affairs, Defence and Trade References Committee report of June 2005’. It goes on to say:

... as the appointments to the court and juries are restricted to serving military personnel, the new court can never be separate from the chain of command and the provisions of the Bill therefore maintain the long unsatisfactory compromise which denies the true independence, fairness and objectivity essential for the proper functioning of the military justice system.

I think that is a legitimate criticism. The government have made a policy decision in terms of the path that they want to proceed down. Given that the government have the numbers in the Senate and in the House of Representatives, it is reasonable to suspect that they will get their legislation through as it is and with the amendments they propose. But, quite frankly, this means that the legislation remains a work in progress. It is inevitable that, at some stage in the future, the parliament will have to revisit the operations of the Australian Military Court, and it should do so on the basis of evidence of the way it operates.

I know that the shadow minister at the table, the member for Bruce, will have some things to say about the bill, but the point I want to emphasise is that those of us who have come from a legal background, as I have—before I came into parliament I was a legal aid solicitor and a public defender, a legal aid barrister, defending people charged with serious criminal offences—bring to bear our experience of a civil system that has served us well. I do not accept the argument that there should be differential principles. I know that there might be a need to change the practical applications because of the way things work—people have to go to battlefields et cetera; that is all explainable—but inferior systems that do not inspire confidence because of a perception of a lack independence are not, in my humble opinion, systems that should be defended. We have had an argument, and it is not military one, about the way David Hicks has been dealt with to date and how it is proposed he be dealt with. In my view, it is unacceptable because a second-rate system of justice is being proposed. American personnel cannot be dealt with in the way that David Hicks is being dealt with. They are dealt with through their civil courts.

There is nothing more that I want to say on the legislation. A lot has been said by previous speakers, and I know that subsequent speakers will have a few other things to say. We say these things in good faith, with no malice towards our service personnel. Given the number of reports that we have had, let us learn from the mistakes of the past and not repeat them. Let us improve the system instead of accepting one that we are just going to tamper with and that, on the face of it, looks as though it is fixing the problems of the past but is not. That is where I leave my question mark on what we are getting in this legislation compared to what we could be getting as recommended by the Senate committee.

Alan Griffin (Bruce, Australian Labor Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

I never like following the member for Banks when it is about legal matters in particular or about matters in relation to the Indigenous community or human rights because he always knows a lot more about these issues than I do. But, not to worry, I am joined by the minister at the table, the member for Moreton. I like following him because I always know more about things than he does. That is certainly my experience anyway and the experience of others, so they tell me.

I rise today to speak on a very important bill—the Defence Legislation Amendment Bill 2006. I support the amendment moved by the shadow minister for defence and congratulate him on his very thoughtful and thorough contribution to this debate. The military justice system exists to maintain discipline and to reinforce the chain of command in the Australian Defence Force. Australia’s military justice system has two distinct but interrelated elements: the discipline system and the administration system. They provide the framework for investigation and prosecution of offences committed under the Defence Force Discipline Act 1982 and the maintenance of professional standards in the ADF and the investigation of certain occurrences, such as accidental deaths of ADF personnel.

In a submission to the Senate inquiry into the system conducted between 2003 and 2005, the then Chief of the Defence Force, General Peter Cosgrove AC, MC, explained:

Establishing and maintaining a high standard of discipline in both peace and on operations is essential for effective day-to-day functioning of the ADF and is applicable to all members of the ADF.

He went on to say:

... the unique nature of ADF service demands a system that will work in both peace and war.

Without an effective military justice system, the ADF would not function. Due to the importance of this system to our defence personnel, I am honoured to speak on the Defence Legislation Amendment Bill 2006 today. I will be addressing the technicalities of the bill soon but, firstly, I want to briefly recount a part of Australian history that I believe is relevant to our discussion today—that is, the trial of Harry ‘Breaker’ Morant and its surrounding controversies.

Breaker Morant was a popular knockabout Australian character who found his way to the Boer War. Morant had immigrated to Australia in the early 1880s and settled in outback Queensland. Over the next 15 years, working in Queensland, New South Wales and South Australia, Morant made a name for himself as a ‘hard-drinking, womanising bush poet and gained renown as a fearless and expert horseman’. In 1899 he volunteered for military service and in 1900 was sent to Transvaal in South Africa as part of the South Australian Mounted Rifles. But in early 1902 he found himself on trial. The main charges were that between July and September 1901 Morant had incited his co-accused, Lieutenants Hancock and Witton, and others under his command to murder some 20 people, including the Boer commando Visser, a group of eight Boer POWs, Boer civilian adults and children, and the German missionary, Hesse.

Morant’s involvement in the deaths of Visser and the eight POWs has never been in dispute, since he openly declared during the trial that he had ordered them to be summarily executed. However, throughout the proceedings he staunchly maintained that he had done so because of his superiors’ orders to take no prisoners and because of the provocation occasioned by the killing and post-mortem mutilation of one of his closest friends. He also insisted that he had been certain that those he executed had been members of the party that had killed Hunt and defiled his body.

I do not want to address any more of the actual circumstances surrounding the case. It is the validity of the court martial that remains the main issue. The disappearance of the original trial records has prevented a full investigation of this matter for over a century. In their absence, historians have been forced to rely primarily on Witton’s memoir, which is very detailed but must necessarily be considered a biased view. The early stages of the trial were, as noted above, comparatively relaxed affairs by military standards. The accused were not kept under close arrest and were often allowed to move about the fort and the town. On one occasion, Witton was even escorted to a cricket match—much to the surprise of the court president, who was also in attendance. Unknown to Witton, the judge had that very day secretly sentenced him to death by firing squad.

In both the Visser and the eight Boers matters, none of the accused was informed of either the verdicts or the sentences until well after the trial. There was apparently no attempt to conduct any form of forensic examination of the bodies of the alleged victims and all the so-called evidence about the killings was verbal testimony collected long after the events. The vast bulk of this testimony was uncorroborated or hearsay evidence obtained during the preceding court of inquiry, much of it apparently gathered from disaffected former carbineers who, if Witton is to be believed, harboured considerable animosity towards Morant and Hancock.

The last phase, the hearing of the Hesse matter, was in stark contrast to the relatively relaxed atmosphere of the earlier phases. Suddenly and without warning, just after the conclusion of the eight Boers matter, the accused were placed under close arrest, put in irons, removed from Pietersburg and taken under heavy guard to Pretoria. This final phase was also conducted in camera, whereas the earlier parts of the trial, in Pietersburg, had been open to the public.

The outcome of the trial was a foregone conclusion. Morant and Hancock were found guilty and sentenced to death by firing squad. Witton was also sentenced to death but this was commuted to life imprisonment by Kitchener. After signing Morant’s and Hancock’s death warrants, Kitchener disappeared on tour, thus removing himself from any attempt to secure their reprieve. Shortly after 5 am on 21 February 1902, Lieutenants Harry Morant and Peter Hancock were led out to be executed by firing squad. Both men refused to be blindfolded. Morant gave his cigarette case to the squad leader and his famous last words were:

Shoot straight, you bastards. Don’t make a mess of it.

It was not until a month later that the news reached Australia of the trial and death of Breaker Morant.

Apart from my love of Australian military history, why bother recounting this story today?

Warren Snowdon (Lingiari, Australian Labor Party, Shadow Parliamentary Secretary for Northern Australia and Indigenous Affairs) Share this | Link to this | Hansard source

Good question!

Alan Griffin (Bruce, Australian Labor Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

I am joined by the member for Lingiari, and of course it is a good question. The story of Breaker Morant teaches us a few lessons that are extremely relevant to the bill before us today. It is a controversial story and a story that is from a completely different time with different circumstances to those of current cases. That said, the lessons I draw from it are relevant to my thoughts on Australia’s military justice system. It teaches us the importance of a fair and impartial trial for military personnel. Impartiality and fairness must be both actual and perceived. It teaches us that arbitrary non-reviewable decisions imposed on personnel by the system will reduce the public’s confidence in the military justice system. It also demonstrates what can be seen as a wide gap between justice afforded to military personnel and that afforded to normal civilians. This is something we need to keep in our minds when considering the adequacy of the bill before us today.

Why are we here today? We are here today because it has become widely recognised that Australia’s military justice system is not delivering the results that it should. Over the past decade, a number of court challenges and publicly aired complaints brought by former and serving personnel, their families and other community members have suggested that the military justice system is flawed. Over the last decade there have been a significant number of official inquiries into, or related to, Australia’s military justice system. These have included the 1997 Study into the Judicial System under the Defence Force Discipline Act by Brigadier the Hon. Mr Justice Abadee; the 1998 Commonwealth Ombudsman’s Own motion investigation into how the ADF responds to allegations of serious incidents and offences; the 1999 Military Justice Procedures in the Australian Defence Force by the Joint Standing Committee on Foreign Affairs, Defence and Trade; the same committee’s 2001 Rough justice? An investigation into allegations of brutality in the Army’s Parachute Battalion; the 2001 Burchett QC Report on the inquiry into military justice in the Australian Defence Force; and the 2002-03 Western Australian Coroner’s investigation of fire onboard HMAS Westralia.

Each of these inquiries identified flaws in the ADF military justice system and processes and recommended changes. The last inquiry that was held was the Senate Foreign Affairs, Defence and Trade References Committee inquiry into the effectiveness of Australia’s military justice system. I quote from some of the committee’s conclusions:

The committee is unanimous in its view that the military justice system has reached a watershed in its development. It has been some twenty years since the last wholesale review of the discipline system. During that same period, as described by the Inspector General, the civilian administrative law has undergone enormous change. The military system has attempted to keep up with this pace of change and has done so quite well but it has the appearance of having been largely reactive and piecemeal. There have been numerous initiatives but these lack a coherent and an independent structure.

They also concluded:

It is in the public interest to have an efficient and effective military justice system. Just as importantly, it is in the interest of all servicemen and women to have an effective and fair military justice system. Currently they do not.

The committee commented on reforms undertaken by the ADF leading into the review, saying that they recognised:

… the measures introduced over the last decade by the ADF in response to many of the problems that have again been identified. The fact that these problems continue to be highlighted in this report demonstrates those initiatives are not fully resolving many critical issues.

These were the unanimous conclusions of the committee, from which no government member on that committee dissented. From these conclusions a number of recommendations were made. This bill today forms part of the government’s response to some of these recommendations. It is a further instalment of the government’s response to the report of the Senate Foreign Affairs, Defence and Trade References Committee on the effectiveness of Australia’s military justice system. The bill makes three principal amendments to the Defence Force Discipline Act. First, it creates the Australian Military Court; second, it creates military juries; third, it creates a power for the CDF to set up what is titled a ‘Chief of Defence Force Commission of Inquiry’. It also provides for changed appeals provisions, categorises offences for the purpose of trials and makes a number of other consequential amendments, including transitional arrangements.

This bill would establish a permanent Australian Military Court under the Defence Force Discipline Act 1982 to replace the current system of courts martial or Defence Force magistrates. As we have heard, the government’s model for the court, as proposed in this bill, does the following: it creates the Australian Military Court within the Defence Discipline Act; its judges must be serving officers of legal experience; reappointment will only occur in exceptional circumstances; on conclusion of their term judges are to be compulsorily retired—if they reach retiring age during term they are also disqualified; part-time judges are not allowed to engage in any other employment outside their duties; if a judge ‘no longer meets his or her individual service deployment requirements’ they may be dismissed; nominees are put to the minister for appointment by a departmental committee; the chief military judge is to be of a rank no lower than one-star general, which is equivalent to the DMP and the registrar; a military judge is to be of no lower rank than commander or equivalent; and, finally, staffing resources are to be supplied from defence members and public servants employed under the Public Service Act.

There is no way that this new court will be independent of the chain of command, nor is it equivalent to what the Senate committee had proposed. The new court is in fact not that different from the system that it seeks to replace. In a report on this legislation, Labor senators commented on the form that this court was to take. They said:

Labor’s principal concern is that the legislation completely ignores the substantive basis of the committee’s recommendation for a Military Court which was that such a court should have all the attributes of a court set up under Chapter III of the Constitution. The assertion by the government that this bill implements the committee’s recommendation is therefore at best misleading, and deliberately so. The Military Court proposed in this bill has none of the attributes of a civilian court, and as expressed in evidence by witnesses, is nothing other than a re-badging of the current unsatisfactory tribunal system. The shortcomings listed in the committee report form the basis of this judgement, to which must be added the power and process of appointment, which remain totally within the military, and the requirement that all appointees remain purely military.

Furthermore, they noted that the Judge Advocate General had reservations about the court. They said:

In evidence to this committee, the Judge Advocate General (JAG) questioned the conduct of criminal trials by Service tribunals. He was concerned because they ‘are not established under Chapter III of the Constitution, and might not be thought to afford the protections provided by those courts’. He mentioned the possibility of the most serious charges being laid against Australian Defence Force (ADF) members and the inappropriateness of the proposed AMC having jurisdiction over crimes such as rape and murder. The Law Council of Australia added weight to the JAG’s argument. It noted the potential for the AMC to be involved in ‘very serious matters’ and gave the example of any possible charges arising out of the Kovco inquiry and the shooting of the Iraqi security guards by Australian troops. It questioned whether the High Court would uphold a tribunal’s constitutional entitlement to adjudicate these issues when it bears a greater resemblance to the Administrative Appeals Tribunal (AAT) than a court. It concluded:

This increases pressure for the inevitable challenge to be brought on the grounds of fairness and impartiality, challenges which have often been brought in the past and are likely to be brought with increasing frequency if this legislation is passed.

There are also concerns that the new court is more like a tribunal, a tribunal that is well and truly within the military’s chain of command. The Judge Advocate General in his submission to the committee inquiry stated:

The AMC will have complete (and exclusive) Australian jurisdiction over members of the ADF outside Australia. Given the present and likely future tempo of operations and exercises, it is entirely foreseeable, if not likely, that there will be charges of the most serious offences (such as rape or murder) against members of the ADF at some stage. The AMC would be the only Australian court which would have jurisdiction. The notion that such charges would be dealt with by a body described as a “tribunal” ... is extraordinary.

In legal terms there has long been a debate about the authority of military tribunals. These tribunals have been challenged in the High Court for their lack of judicial independence and impartiality. This concern was canvassed by the recent inquiry into this legislation. At this hearing the view expressed by the Judge Advocate General is that the closer such a tribunal can be aligned with the arrangements for a court established along the lines of a chapter III court the less likely a challenge may be.

A hearing has been set aside in February 2007 for the full High Court to hear a challenge to the validity of current service tribunals. Therefore, it could be said that this proposed legislation does nothing to save the AMC from a constitutional challenge; instead it threatens the effectiveness and independence of the court.

So instead of this government introducing real reforms we have here only a half-hearted attempt at developing a new Australian Military Court. Unfortunately, the government has ignored the excellent work of the Senate committee in its initial hearing on military justice and its subsequent hearing into this legislation. This court is in no way independent as claimed by the government. While the bill does take some steps in the right direction, we believe they do not go far enough.

I would like to make a brief comment on the Chief of Defence Force commission of inquiry. Such inquiries will be mandatory, and the appointee to conduct them will be a civilian. This is in contrast to the government’s attitude on the development of a military court, where only ADF personnel can serve. We largely view this as a positive mechanism that can aid Defence in getting to the bottom of some of the more tragic incidents that have occurred in the past, such as suicides, bastardisation, harassment and accidental deaths.

I support the amendment moved by the member for Barton today. Labor is reserving its right to further examine the amendments proposed today with a view to potentially rejecting some or suggesting further amendments. I find it amazing that for legislation of such importance this government is arrogant enough to introduce a bill so shoddy that a government chaired committee has shot it down in its original form. Then it presented its amendments to the bill only a few hours ago, leaving no time for proper scrutiny of these amendments. This is incompetence at best.

There is no doubt that the bill does contain some positive initiatives, which Labor does welcome as a step in the right direction. However, there is also no doubt that this bill does not go far enough and fails to deliver real reform. This government had a great opportunity here and yet again it has let it pass. Instead we have seen the same level of administrative incompetence and sloppy legislative processes that we are all becoming increasingly accustomed to from this government.

The provision of a military justice system that is based on fairness and impartiality is not just an issue of justice; it is also an issue of national security. In my capacity as shadow minister for veterans’ affairs I have had the privilege of speaking to a wide variety of veterans across the country. One resounding message I always receive from the veteran community is that the way we treat and look after our service personnel is directly related to the quantity and quality of recruitment and retention in the ADF. This point relates directly to the topic we are discussing today—namely, the administration of Australia’s military justice system.

One of the biggest strategic challenges that we now face in the area of defence is that of recruitment and retention. If we want to improve this we must improve the conditions for our serving personnel. It seems logical to me that one of the best ways to do this is to provide a fair and impartial military justice system that affords a level of justice that is equal to that enjoyed by the rest of the population.

We want potential applicants to be confident that when they join the ADF they are joining an organisation where they will be offered the same standard of justice that they receive while they are a civilian. We also want parents who have children contemplating a career to not have to fear that their child will be the subject of injustice, as has too often happened in the past. As veterans of our ADF constantly tell me, the way we treat our service personnel during and after their career will have one of the biggest effects on the levels of recruitment and retention.

The crux of the matter really is that our ADF members should be afforded all of the protections offered to normal civilians. Justice for one should be justice for all. We should not be implementing reforms that will leave Caesar to judge Caesar.

The handling of this bill by the government has been a disaster. They have refused to implement the recommendations of the Senate committee’s highly respected report into the effectiveness of our military system. They have ignored the concerns of their own members. They have been forced to add last-minute amendments to the bill, largely due to their misunderstanding of the issues. They have not consulted widely enough on the bill.

This haphazard approach is typical of this government’s approach to matters affecting our national security. Whenever it comes to the armed forces, the government are extraordinarily quick to wrap themselves in the flag and be photographed with them. They hope that photos with our service men and women will somehow help them maintain a myth that they are masters of national security. Well, these so-called masters of national security have provided us with the biggest national security scandal in our history with the AWB and then offered the defence of incompetence and negligence as if that were somehow acceptable. They have led us into Iraq, now largely a civil war, whilst withdrawing prematurely from both Afghanistan and East Timor despite Australia’s more direct strategic interests in these areas. They have experienced constant problems delivering defence capabilities, ensured we will have an air combat capability gap, provided little to no direction for our strategic outlook despite a rapidly changing strategic environment and used and abused the ADF and veteran population for largely political purposes. Finally, they have now failed to deliver on a once-in-a-lifetime chance to deliver real military justice reforms. Instead, we see a bill that they could not get right the first time and that is now only a half-hearted attempt at addressing the issues.

We will be further examining the amendments provided by the government today in the hope that they have corrected some of the bigger flaws of this legislation. The Australian people deserve better than this. The service men and women of this country deserve better than this. They deserve a government that is less show and more results when it comes to national security and the ADF. I support the amendment moved by the shadow minister for defence.

Warren Snowdon (Lingiari, Australian Labor Party, Shadow Parliamentary Secretary for Northern Australia and Indigenous Affairs) Share this | Link to this | Hansard source

While he is still in the chamber, I want to thank my colleague the member for Bruce for his erudite contribution on the Defence Legislation Amendment Bill 2006. He outlined very succinctly and in very clear terms the case that we have and our concerns over this piece of legislation, which implements changes to the military justice system that are contained in the government’s response to the Senate Foreign Affairs, Defence and Trade References Committee report of 2005 entitled The effectiveness of Australia’s military justice system. This bill will see the creation of a new Australian Military Court to replace courts martial and the Defence Force magistrate, create military juries and make a number of procedural changes. The bill also provides for a new Chief of Defence Force commission of inquiry to be undertaken in the sad event of a suicide or a death in service of Australian Defence Force personnel.

I am happy to support reforms to the military justice system, but I am concerned about the inadequacies of this legislation. I refer members of the chamber to the second reading amendment which has been moved by the shadow minister, which outlines very clearly the concerns that we have about this piece of legislation—firstly, that the establishment of an Australian Military Court and the provisions for that establishment are not in line with chapter III of the Constitution, as recommended by the Senate Foreign Affairs, Defence and Trade References Committee report of June 2005; and, secondly, that the court and juries are restricted to serving military personnel. The new court can never be separate from the chain of command, and the provisions of the bill therefore maintain the longstanding unsatisfactory compromise which denies the true independence, fairness and objectivity essential for the proper functioning of the military justice system.

This bill could do a lot more and go a lot further in ensuring that those who serve in our defence forces receive equality in terms of access to the justice system and the independence, fairness and objectivity that we value in our civilian legal system and that we take for granted but that clearly is not available to members of the Australian defence forces. This bill is a disappointment for those—some of whom are in this chamber—who have sought to develop a military justice system that is appropriate to the needs of Australian Defence Force personnel, is fair and recognises the unique circumstances of their working environment, the chain of command and their obligations to the Australian community.

I note that the efforts we have made in trying to reform the military justice system well and truly pre-date the Senate committee’s 2005 inquiry. Indeed, I was a member of the Joint Standing Committee on Foreign Affairs, Defence and Trade when the committee inquired into the military justice system and released its report Military justice procedures in the Australian Defence Force in 1999. I was also a member of the Defence Subcommittee of the Joint Parliamentary Committee on Foreign Affairs, Defence and Trade when it undertook its inquiry Rough justice? An investigation into allegations of brutality in the Army’s Parachute Battalion. The report was made in 2001.

In the consideration of the Rough justice report, Labor members of the Defence Subcommittee wrote a dissenting report. In that report we expressed our concern about the military justice system’s ability to operate fairly, equitably and in a timely manner. While the incidents that the subcommittee was asked to investigate were most disturbing, in the opinion of the authors of the dissenting report—me included—the most critical issue was that confidence needed to be restored in the military justice system. I remain of the view that we need to do something to ensure confidence is restored in the military justice system. I do not believe this bill, despite whatever merits it may have, goes far enough to do so.

I want to pick up on the observations of the previous speaker, the member for Bruce, and his concerns about the shoddy way in which this piece of legislation has been dealt with and the government’s own amendments which have been tabled today. This reflects the shoddy approach that has been adopted by the government in its haste to bring this legislation into the chamber. This legislation is clearly imperfect, clearly needs a lot more work and clearly needs greater consideration by this chamber.

But, in light of the more recent reports produced by the Senate committee, I share the concerns of the shadow minister for defence that the government’s response to the 2005 Senate committee report did not fully pick up the recommendations that the committee made. Of course, that is the government’s prerogative, but they would want to have a decent rationale for doing so. And, despite the extensive work undertaken by the Senate committee into Australia’s military justice system—following on, as it has done, from the two reports I referred to previously—and the recommendations that the Senate committee made toward developing a more independent judicial system for the Defence Force, the government have chosen to ignore the very foundation of the committee’s findings and reject some of its key recommendations.

The committee noted that all of its recommendations were:

… based on the premise that the prosecution, defence and adjudication … should be conducted completely independent of the ADF.

This will not be the case if this legislation is passed. The government’s response rejected a number of the recommendations made by the committee that sought to achieve this level of independence. One such recommendation was that the Australian Military Court be set up as an independent court under chapter III of the Constitution. Under this proposal, the court would have stood independent of the defence chain of command—indeed, of the executive branch of the government itself—as other Commonwealth courts do. It is an integral part of the separation of powers in our Constitution and something which we in the community normally take for granted.

I want to express my strong support for the second reading amendment moved by the shadow minister and the concerns that he has expressed, and which I have mentioned previously, about the court not being established as a fully independent court under chapter III of the Constitution; that appointments to the military jury system will be restricted to serving military personnel—that is a serious source of concern; that the new court will not be fully separate from the defence chain of command; and the denial of true independence, fairness and objectivity essential to the proper functioning of the military justice system. I would have thought that the need for a military justice system that is fair, timely and treats those before it equally goes without saying.

The government notes in its explanatory memorandum to this bill that Defence Force personnel find themselves in a unique situation—and they do. The government tells us that the military justice system is one in which:

A knowledge and understanding of the military culture and context is essential. This includes an understanding of the military operational and administrative environment, the unique needs for the maintenance of discipline of a military force in Australia and on operations and exercises overseas. The AMC must have credibility with, and acceptance of, the Defence Force.

Mr Deputy Speaker, it will come as no surprise to you that I can appreciate these requirements.

It is, of course, a time of difficulty, even stress, for the Defence Force in overseas deployments and with the concerns about recruitment and retention because of the obligations they are undertaking on our behalf. I would have thought that under those circumstances addressing military justice issues would be one area requiring the attention of the government when considering these personnel issues—to ensure that the military justice system was fair, treated people equally and was independent. You would think and hope that it would be an attraction to potential recruits to the Australian Defence Force. But what we are fundamentally on about here—certainly what I am on about—is judicial process; we are talking about basic protections and rights held by all Australians.

When Australians join the Defence Force to serve their country, they and their families should not be expected to give up their rights as citizens that they enjoy and that they are charged with protecting. Why is it that we treat them so differently in that regard? When they are involved in an incident drawing them to the attention of disciplinary and administrative processes—no matter what their capacity in their involvement with those processes—they should not be expected to surrender the right to fair, equitable and timely treatment.

The protections we as civilians enjoy in the courts are fundamental rights; they are fundamental to the proper functioning of the justice system. They are fundamental rights that should be afforded to Australian Defence Force personnel. As I have noted, applying these standards to the military justice system has been the goal of a number of inquiries of this parliament. It has been a personal objective of mine, and I know it has been one for other members on this side of the chamber, certainly since the late 1990s.

A major innovation in this bill is the move from the present system of courts martial and Defence Force magistrates to a new Australian Military Court. The establishment of a military court was discussed by the Senate committee in its report. It was considered necessary to establish an independent system because:

Having considered the evidence before it, the committee holds grave concerns about the ADF’s capacity to conduct rigorous and fair disciplinary investigations.

The Senate committee’s recommendations were:

... the Government amend the Defence Force Discipline Act 1982 to create a Permanent Military Court capable of trying offences under the DFDA currently tried at the Court Martial or Defence Force Magistrate Level.

And:

The Permanent Military Court ... be created in accordance with Chapter III of the Commonwealth Constitution—

as I have already outlined, and—

Judges should be appointed by the Governor-General in Council;

Judges should have tenure until retirement age.

The committee recommended that judges appointed to the permanent military court should be required to have a minimum of five years recent experience in civilian courts at the time of appointment.

The government, as we know now, rejected this recommendation. By and large this was on the grounds that an independent military court established like a civilian court would be unable to meet the requirements of the ADF. The government’s argument was that the ADF needs:

… [a] a military discipline system, the object of which is to maintain military discipline within the ADF. It is essential to have knowledge and understanding of the military culture and context.

It continued:

The Chapter III requirements are not consistent with these factors, and the Government does not support the Chapter III features for a military court.

Labor senators in the Senate committee’s inquiry into this bill noted the evidence of the ADF’s Judge Advocate General that there is some concern about:

… the conduct of criminal trials by Service tribunals ... because they ‘are not established under Chapter III of the Constitution, and might not be thought to afford the protections provided by those courts’.

The proposed new military court to be established by this bill is instead to comprise a chief military judge with two permanent military judges appointed for five years—unlike judges under chapter III, who are appointed with tenure—and a panel of part-time judge advocates. All appointees are required to be legally qualified for military service and are to be appointed by the Minister for Defence from a list, selected by a special committee which in turn is to be selected by the CDF.

That is not independence; it is far from it. You could not argue under those circumstances that those members of this court could be seen as independent. It is true that this position in the ADF requires an appreciation of the culture and of military discipline, but it is not beyond the wit and wisdom of people to determine that, understand it and come up with a set of circumstances which provide protections for those matters but at the same time provide a court system which gives members of the ADF, as I said earlier, equal and fair treatment at a standard that would be applied in the civilian community. It is hard to make sense of any argument that ADF personnel should not be entitled to the same legal protections that civilians are when they face the courts. I cannot imagine why that should be the case.

The bill also proposes a Chief of Defence Force commission of inquiry. In the sad event of a suicide or death in service, a commission of inquiry will be mandatory and a civilian will be appointed to conduct it—quite different from the proposals for the court. In the last decade, 79 ADF personnel have taken their own lives. This is both distressing and appalling. Unfortunately, bullying and harassment seem to have been common elements in those suicides—those untimely, very unfortunate and sad events. Having an improved system of investigation truly independent of the chain of command is a very good start. We know that there has been some degree of dissatisfaction with the outcomes of the military justice system in investigating suicides and deaths in service and in implementing measures to prevent these tragedies from occurring in the future. It is interesting that the government is prepared to support a move towards civilian based commissions of inquiry for these very serious issues but patently unwilling to establish the Australian Military Court as a chapter III court, providing similar independence and ensuring that civilians and people with experience in civilian courts are engaged.

Nonetheless, the efforts to improve the way suicides and deaths in service in the Defence Force will be dealt with have my strong support. I hope that, on reflection on the shoddy way in which this piece of legislation has been put together, the government will reconsider its approach and come to understand that we on this side of the chamber—and, indeed, those senators in the other place—have a common interest with the government on this. We are not trying to make political points; this is about trying to provide a system which is fair, reasonable and just for Australian Defence Force personnel. I would urge members of the chamber to support the amendment which has been moved by the opposition.

Bruce Billson (Dunkley, Liberal Party, Minister Assisting the Minister for Defence) Share this | Link to this | Hansard source

I would like to thank members from all sides of parliament for their contribution to the debate today. I would like to offer some views in summing up the discussion and touch on some of the points that were raised. On 14 September 2006 I introduced the Defence Legislation Amendment Bill 2006. On 9 October 2006 the Senate Standing Committee on Foreign Affairs, Defence and Trade considered the bill and a number of submissions that it received. I thank the committee for its consideration of the bill and for bringing to my attention certain matters that it considered should be specifically addressed or clarified in the bill, which will strengthen the bill as a whole. In my speech presenting the bill I noted the previous defence minister’s comments regarding the Australian Defence Force’s ‘truly magnificent job in defending this nation and its interests’ and the government’s commitment and ‘determination to provide a military justice system that is as effective and fair as possible’. The government continues to express its admiration and appreciation for our defence personnel and the important, challenging, often dangerous activities they undertake both here in Australia and on overseas operations.

To achieve this, as my speech on 14 September outlined, the bill creates a permanent military court to increase the confidence in the military justice system among those it serves and those, more broadly, who observe its operations. The bill proposes to establish a new Australian Military Court that would operate independent of the chain of command. The essence of this judicial independence is reflected in the bill through the principles of security of tenure, security of remuneration and administrative independence. However, the new Australian Military Court must still meet the unique requirements of the ADF, such as the ability to deploy quickly and sit in an operational theatre.

The proposed amendments to the bill outlined today will reinforce this position. The intent of these amendments is to further demonstrate the government’s commitment to installing a best practice military trial system for the Australian Defence Force members and to establish a qualified and experienced military judiciary to ensure a fair hearing and natural justice in the context of the enduring need of the Australian Defence Force to maintain effective discipline and, through that, operational effectiveness.

In meeting this unique mix of requirements, the bill and its amendments must reflect best practice from both the legal and the military perspectives. The amendments I am introducing today address these needs, particularly in relation to the essential military character and status of the Australian Military Court; the structure of the court to meet its predominant caseloads and its exceptional circumstances and to have the capacity to deal with the most serious of offences; the attractiveness of the military judge appointments to the optimum pool of candidates; the maintenance of the level of experience amongst military judges; the rigour of the military jury decision processes; and the clarification of the proposed class of offence regime.

To better maintain a consistent level of experience on the court and to further demonstrate security of tenure, judicial independence and the prospect of career progression, the government agreed that the tenure of military judges would be increased from a period of up to five years to a 10-year fixed period. Whilst there will be no opportunity for reappointment, new provisions will allow for promotion and acting appointments in certain circumstances. These have been included and will recognise the status and the importance of the appointments and increase the attractiveness of the positions to the Australian Defence Force’s legal officer corp.

To further demonstrate the independence and impartiality of these positions, it is intended to replace the Minister for Defence with the Governor-General in the appointment of the Chief Military Judge or a military judge. Automatic promotion in certain circumstances at the midterm point of an appointment has also been provided for; however, the appointments will be subject to the same qualification and service deployment criteria currently contained in the bill for reasons that I outlined earlier. A former Chief Military Judge, military judge or other judicial officer—for example, a judge or a magistrate of a federal court or a court of a state or territory who is serving in the Australian Defence Force—will be able to act as a military judge in circumstances where the expertise or experience of that person is required in respect of a particular charge.

The AMC was not originally conferred with the status of a court of record and there was no legal or practical reason for doing so. Similarly, it avoided conferring the characteristics of a civilian court with greater jurisdiction on the AMC. However, to further enhance the status of the AMC, the proposed amendments will specify that the AMC is a court of record, noting, however, that there will be provisions to limit the publication of proceedings in the interest of security or sensitivity. The size of a military jury will be reconfigured to align the constitution of a military jury with the class of the offence. For example, a class 1 offence—the most serious offence under the bill—will require a jury of 12 members. A class 2 or 3 offence will require a six-member jury where trial by jury is mandated or elected. The determination of questions by unanimous or majority verdict by the jury has also been altered.

The Australian Defence Force currently has serving judges and magistrates from federal, state or territory courts as reserve members. The proposed amendments will preclude a judge or magistrate from a state, territory or federal court who is appointed as a part-time or acting military judge from receiving remuneration under the DFDA if they receive salary or annual allowances by virtue of their civilian judicial office. The rationale for such a provision is not only to reinforce the independence and the impartiality of military judges but also to counteract any perception of financial advantage, incentive or inducement in the remuneration arrangements surrounding the appointment of a part-time or acting military judge.

However, the provisions also provide a capacity to ensure that a state or territory judge or magistrate will not be financially disadvantaged by the operation of the proposed provisions whereby the minister can enter into any arrangement that might be necessary to secure the services of such a judge. This also includes the possible reimbursement of a state or territory by the Commonwealth. As a consequence, the amendments will also amend the Judges’ Pension Act 1968 so that a military judge appointed to the AMC under the DFDA is not eligible for a pension pursuant to the Judges’ Pension Act. Lastly, the amendments will correct an anomaly in respect of the reference to the classes of offences in the bill, particularly in schedule 7. Neither the substance nor the intent of the bill in this respect is affected by these amendments.

A modern and professional force deserves a modern and effective system of military justice. Together with the reforms contained in the bill, the proposed amendments will refine and strengthen existing provisions. They will enable the government to provide a system that will better ensure impartiality and fair outcomes and strike an effective balance between the need to ensure effective discipline in the Australian Defence Force and to protect individuals and their rights. In some of the discussions that have been held in this chamber there seems to have been some confusion about the provisions that are being debated. The opposition is, on one hand, critical of aspects of the original bill and it is then, in turn, critical of the government’s responsiveness to legitimate and well-argued points of view presented at the Senate committee hearings. The government listened carefully to those submissions, recognised the merit in a number of them and has acted quite appropriately and in a timely way to respond to those deficiencies which were identified as part of the Senate inquiry, and I have touched on a number of those amendments.

The changes to the period of appointment—the extension from five to 10 years and the midterm promotion—will not only ensure an attractive opportunity for people who may be considering a role within the Australian Military Court as its chief judge or as a military judge but also secure career promotion midterm so as not to have any suggestion that there is influence on a judge within the chain of command relating to those promotion opportunities. The alternative would have been to not extend the term, and the opposition would have criticised that. To extend the term and not provide an opportunity for promotion would have also drawn some criticism. I think the amendment that has been introduced is quite responsive and elegant in the way that it deals with those dual and competing requirements and expectations.

The other issues relating to the court of record also seek to ensure that the proceedings of the court are available to be reviewed and examined. We have identified and recognised the point that was made during the Senate inquiry and have made those amendments. This is another example where the shelf life of some of the criticisms raised by members opposite had actually expired before the contributions were made in this place. That is not to criticise the opposition for having finalised their speeches prior to the amendments being brought before them, but it does give an opportunity for those listening to this debate and interested in this subject to recognise that those deficiencies most focused upon by the opposition have in fact been addressed in the amendments put before the parliament.

Throughout the discussions about courts martial, members opposite sought to be critical that this was a system that replicates the existing arrangements. A number of points need to be made in that regard. First of all, the Australian Military Court and the provisions within the bill being debated today are but a part of the overall government response to the Senate inquiry into the military justice system. Other elements have already been introduced. One of them is the formation of the position of Director of Military Prosecutions so that there is a consistent, reliable and robust instigation of charges which replaces the current arrangement where more than 30 people within the Australian Defence Force can instigate a charge under courts martial.

There are other areas of work that are proceeding, including the examination of the investigatory powers of the police and the issues relating to culture and training installation—a range of other relevant and germane issues to military justice as canvassed by the Senate inquiry but quite separate from the particular provisions relating to the formation of the Australian Military Court that we are here to discuss today. I would encourage members opposite to actually examine the amendments, to recognise that those amendments enhance a bill before the parliament that was already of some quality and improve it even further, and to recognise that the bill itself and the formation of the Australian Military Court are but a part of a multifaceted approach to dealing with the shortcomings identified by the Senate committee in relation to the military justice system more generally.

Another issue that seems to be constantly argued is the chapter III status of the court under the Constitution. This issue has been discussed and canvassed over and over again. It is the government’s view that the chapter III option under the Constitution would create a court of considerable civilian character and not properly recognise the military requirements that the Australian Military Court must also meet. That should not give anyone the impression that the protections available within civilian jurisdictions are not available to members of the Australian Defence Force. That is quite incorrect and is a false assertion not based on any fact or any actual provision in these bills.

The avenues for appeal and redress and the opportunity in certain categories of offences for the accused to nominate the form and structure through which that charge will be heard are just some examples of how the checks and balances that are available for people before the Australian Military Court system are, in some cases, enhanced and improved versions of what may exist within the civilian environment. This is because the military is different from the civilian world. Military discipline goes to the heart of the effectiveness of the Australian Defence Force and, in introducing these amendments on top of the bill that was already before the parliament, we seek to further recognise those distinctions but, so far as is possible and practicable, implement the best elements of military justice systems around the world and the best and most appropriate elements of the civilian system.

To try and discredit the court as a tribunal, as I think the member for Barton sought to do, is perhaps applying a label where logic would have been more helpful. At the least serious level of the offences considered by the court, it has some characteristics of a tribunal in its responsiveness and the way in which matters can be progressed. But we also need to recognise that the Australian Military Court needs to be able to function for very serious matters, some with a degree of serious criminality, that we understand and more appropriately deal with within the civilian sphere. There are options under the DFDA where civilian pathways are most appropriate to continue with that. However, where the Australian Military Court needs to hear those most serious cases, there are checks and balances. The size of the jury, the court of record and its composition ensure that the best elements of a civilian court are brought to the processes of the Australian Military Court.

So there is a calibration of the mechanisms and the arrangements presented within this bill in keeping with the severity and seriousness of the crime and embracing the best elements of civilian and military disciplines. I commend the bill and the amendments to the House. I present a supplementary explanatory memorandum to the bill.

Barry Haase (Kalgoorlie, Liberal Party) Share this | Link to this | Hansard source

The original question was that this bill be now read a second time. To this the honourable member for Barton has moved as an amendment that all words after ‘That’ be omitted with a view to substituting other words. The question now is that the words proposed to be omitted stand part of the question.

Question agreed to.

Original question agreed to.

Bill read a second time.