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

I urge all members in the chamber to stay, because this will be a fantastic speech about my support for the Military Justice (Interim Measures) Amendment Bill 2011! This bill ensures that Australia's military justice system remains in operation while the government works to establish the Military Court of Australia. The appointments of the Chief Judge Advocate and the two full-time judge advocates are due to expire in September 2011. This bill extends those appointments to ensure Australia's military discipline system remains in place.

As I am sure the chamber knows, our military discipline system covers a range of issues that might impact on our soldiers, sailors and air men and women. Because of the parliamentary placement program and our job as parliamentarians, we do know that those who don the green, the white or the blue are definitely a special breed of people. I note the member for Ryan, who is in the chamber tonight, has family who have done just that. For people who do don the green, the white or the blue, words like 'honour', 'courage' and 'service' are not words that are just trotted out in speeches on Anzac Day; they are not esoteric concepts. These are actually ways that they use to live their lives every single day.

Obviously, surrounding that are the laws of war and the laws for preparing for war. The primary aim of the law of conflict, also known as international humanitarian law, is to protect the victims of armed conflict and to regulate the conduct of hostilities based on a balance between military necessity and humanity. At the heart of the law of armed conflict lies the principle of distinction between the armed forces who conduct the hostilities on our behalf, or on behalf of the parties to an armed conflict, and civilians, who are presumed not to directly participate in hostilities and must be protected against the dangers arising from military operations. Under these international humanitarian laws the concept of direct participation in hostilities, which refers to conduct which is carried out by civilians, suspends their protection against the dangers arising from military operations. Most notably, for the duration of their direct participation in hostilities, civilians may be directly attacked, unfortunately, as if they were combatants in those particular circumstances.

Throughout history humankind has, unfortunately, continually resorted to force to resolve its conflicts. Although there has been a rise in diplomacy over the last 200 or so years, unfortunately we still have conflicts—not as much conflict in the last 20 or 30 years as in the horrific 40 years before, but nevertheless there are still trouble spots around the world. International humanitarian law developed within the limitations on the use of force in an attempt to minimise the horror, particularly in response to the conflict of World War II, where we saw so many civilians die—particularly the Russians, but throughout the world. The doctrine of proportionality requires a response of force to be proportionate to the aggression that precipitated such force. This doctrine accepts wartime civilian casualties as unfortunately inevitable, but the doctrine of proportionality requires that civilian casualties inflicted by military strikes not be excessive in relation to the anticipated military advantage gained by the strike. The rules of engagement are specific to the conditions of a particular area of operations, and the actual text of any set of rules of engagement is classified and therefore not publicly available. For instance, if members or senators are overseas on a parliamentary placement program, unfort­unately, unless you have the right military classification, you are not able to see the rules of engagement. Soldiers often keep these on a card inside their jackets, because obviously it could be a problem if those they were fighting against knew the rules of engagement. We do not want the force we are up against to know what the ADF personnel can and cannot do. So the rules of engagement are always classified. Consequ­ently, I was quite surprised to see late last year much commentary in the media about the rules of engagement for our Australian soldiers in Afghanistan. According to the commentary I heard about and read, Alan Jones must have somehow been privy to the military rules of engagement for our soldiers in Afghanistan.

The role of the independent Director of Military Prosecutions came about through recommendations arising from a series of committee inquiries in this particular building, many of which were gravely concerned that military justice was not delivering impartial, rigorous and fair outcomes for members of the ADF. We ask much of our ADF personnel, but the High Court said that we cannot ask them to forgo access to justice. That is obviously a call that this House respects. That is why last year I was very shocked to hear an exchange between the shock jock Mr Alan Jones and the Leader of the Opposition, the Hon. Tony Abbott, where they cast aspersions over the Director of Military Prosecutions and her role in the case against the soldiers who were facing manslaughter charges as a result of an operation that unfortunately killed six civilians in Oruzgan province in Afgh­anistan.

Just to be clear, at Senate estimates hearings Air Chief Marshal Houston, a man who is very well respected by both sides of this House, said that the soldiers were fully entitled to the presumption of innocence and that the Army had gone to unprecedented lengths to support the soldiers and to make sure that they were properly treated in the system. But what did the Leader of the Opposition, the Hon. Tony Abbott, and Mr Alan Jones have to say about this arrangement and the support being provided to the soldiers? The Leader of the Opposition told his favourite shock jock, Alan Jones:

… I'm not sure whether we—

that is, if the Liberal Party were the gov­ernment—

can overturn the decision of an independent prosecutor.

'I am not sure.' That is his statement. 'I am not sure that we can do that.' Thankfully I think there are still people on the opposite side of the chamber who do believe in the separation of powers. Any lawyer worth their salt knows that the separation of powers is a fundamental tenet of the Westminster system. Yet he who would be king, he who would be Prime Minister, then went on to say:

Well, as I said, Alan, I suspect there has been a deep failure by this Government to provide these soldiers with the defence that they are entitled to.

Those are ill-informed comments, baseless comments, dangerous comments on talkback radio. It is cheap populist commentary more befitting a boofhead out in the back bar than the political leader of the Liberal Party. The Hon. Mr Abbott went on to say to his talkback doppelganger:

… because the last thing that people would want to see is soldiers being stabbed in the back by their own Government and I know a lot of people think that’s what’s happening.

Amazing statements, but I am quoting directly. I previously called this statement erroneous in the House. It was then and it remains so now. Yet still—and I do not read the papers religiously every day—I have not seen an apology from the Hon. Tony Abbott, the Leader of the Opposition, about those statements made to the shock jock Alan Jones. In the same radio interview with Mr Jones, who should have known better—I think he was dux of Toowoomba Grammar back in the day, so he is a very smart man; he was a teacher who went on to other things— Mr Abbott then went on to say that he was 'the standard bearer for values and ideals which matter and which are important'. Some standard! Some bearer!

As a standard bearer, the Hon. Tony Abbott might wish to revisit this interview, because it was a particularly galling moment for many people—for many lawyers and for many people involved with the military justice system. I say this as the case against two of the Army reservists charged with manslaughter in Afghanistan will not go to a court martial after a judge advocate actually dismissed the charges. We should all be aware that this outcome was not because of the inappropriate musings of the Leader of the Opposition on the Alan Jones program. This was the result of the military justice system doing its job, and justice was done, as it will be done for the other soldier who is still experiencing the appropriate scrutiny of our Australian military justice system, and the legislation before the House supports that process. I commend the bill to the House.

Jane Prentice (Ryan, Liberal Party) Share this | Link to this | Hansard source

We often speak in this chamber about the value we place on our service men and women and the risks they take on our behalf every day of their service. It is therefore of utmost importance that we support our troops in any way that we can. This was apparent in 2007, when both sides of this House supported the establishment of the Australian Military Court. However, as an outcome of the case of Lane v Morrison, it became necessary to change the legislative framework for the court. This occurred back in 2009. At the time, the Minister for Defence said that establishing a correctly constituted military court was of the highest priority for the government. However, two years on, we are no closer to seeing this statement become a reality.

In fact, in May this year, the current Minister for Defence advised that the legislation is still in formulation stage and is unlikely to be resolved by September this year—the original time line put forward by the government. And this is why we are here today, moving an amendment to effectively allow an extension of the time line for the government to implement legislation for which they had set their own timing—legislation they once stated was of the highest priority. If it takes two years to get to formulation stage of legislation for an issue of highest priority, it raises serious questions as to the capacity of this government. This failure to meet their own standards is yet another example of a broken Labor promise, of letting down the very people they should be supporting. We have seen it with home insulation, GroceryWatch, Fuelwatch, the cash-for-clunkers scheme and the green loans program. I am concerned that when an issue is labelled 'high priority' by this government those words may very well be its kiss of death. Who could forget the former Prime Minister's words that an ETS would address 'the greatest moral issue of our time'? We now have no ETS legislation and just another tax to deal with the problem. Of course, it is important that the legislation to establish the court be properly and effectively drafted, but surely the minister could explain to the House why it is that we have this delay.

Failure in the area of the Australian Military Court is simply not good enough. We must support our troops. They must know what is in store for them, and what avenues they have—we cannot continue to leave them in limbo. The uncertainty surrounding this legislation and the uncertainty surrounding an area that affects our servicemen's and servicewomen's lives do not provide them the support that they deserve. This amendment does allow the existing interim arrangements to continue, but the point is that both the government and the coalition acknowledge the need for change. Equally, our servicemen and servicewomen would be well served by the Australian Military Court. This was established after a series of Senate committee reports over a number of years that recommended extensive changes to the military justice system. Those who handle military discipline require a critical understanding of the nature of service—in fact, there are offences, such as going absent without leave, that apply only in a military sense. It is particularly important that the Australian Defence Force be able to deal with discipline and criminal conduct under a military code of conduct, and this is especially necessary during overseas deployment. This is something with which a regular court would struggle.

Perhaps most importantly, however, is that the nature of military service is unique. The fundamental basis of this legislation is that a military court is about discipline of the defence forces, and that is what the entire Defence Force Discipline Act is designed to ensure. We recognise the unique nature of service—and with that comes a need for unique disciplinary measures. We must aim for world's best practice in all areas within our Defence Force, including that disciplinary system. An Australian military court, operating under world's best practice administration, is a necessary step toward this.

Military discipline is a tough issue. It is sensitive, can be emotional and is difficult for non-military personnel to understand, but it is vitally important to provide certainty and stability to those who serve our country. More than just putting out press releases stating an intention to re-establish the court, as we saw last year, the government must now actually make this happen, genuinely make writing the full legislation for an Australian military court their highest priority. For once this government must actually match the words 'highest priority' with real action, not more excuses for their failure.

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

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

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

the Australian Military Court—

is constitutionally invalid.

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

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

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

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

I rise in support of the government's Military Justice (Interim Measures) Amendment Bill 2011, which will provide for the appointment, remuneration and other entitlements of statutory office holders, namely the Chief Judge Advocate and two judge advocates, each of whom are full-time members of the Australian Defence Force. This bill will ensure that these appointments continue beyond two years, as in schedule 3 of the act, as the current fixed tenure is due to expire in September. These are interim measures for the establishment of a new Australian Military Court. The Minister for Defence and the Attorney-General have directed that further policy work is to be undertaken into the proposed interface between the Military Court of Australia and the residual court martial system.

The amendment will extend the appointments until the Military Court of Australia is introduced and the new model is implemented. The new court will replace the interim measures put in place last year following the High Court's decision in Lane v Morrison, which invalidated the Australian Military Court. In the Lane v Morrison case the High Court determined that Colonel Peter Morrison, a military judge, could not proceed with trying charges against Mr Brian Lane, a former member of the Royal Australian Navy, because the legislation that established the Australian Military Court in which the charges were to be heard was constitutionally invalid.

The High Court found unanimously that the provisions of the Defence Force Discipline Act 1982 establishing the Australian Military Court were invalid because the Military Court purported to exercise the judicial power of the Commonwealth but did not meet the requirements of a chapter III court under the Constitution. Chapter III of the Constitution ensures judicial independence from the executive and the legislature by providing that federal judges have tenure until they reach a fixed age of no more than 70, and that they can only be removed for proved misbehaviour or incapacity following a request from both houses of parliament to the Governor-General.

Following this case, this government has announced it will take the measures necessary to establish and strengthen the Military Court of Australia. It has in the meantime put in place interim arrangements to ensure that our military justice system continues. The Military Justice (Interim Measures) Act (No. 1) 2009 has been introduced to sustain the military justice system. The Military Justice (Interim Measures Amendment) Bill 2011 has been developed to continue these appointments, remuneration and entitlement arrangements for the Chief Judge Advocate and the two full-time judge advocates, each of whom are full-time members of the Australian Defence Force. This legislation will establish a permanent, effective and constitutionally sound system of military justice for Australia's defence forces. Unfortunately, when the coalition set up the Australian Military Court without implementing legisl­ation that aligns with chapter III of the Constitution, it resulted in a ruling in a case in 2009 that the court was unconstitutional. The Labor government has since introduced legislation to establish a fully independent court, the Military Court of Australia.

I want to congratulate the Minister for Defence, Stephen Smith, and the Attorney-General, Robert McClelland, for the hard work they are doing to ensure that our military justice system is strengthened through the establishment of a new bill that will create a military court that is constitutionally fitting. The Gillard Labor government is continuing to keep Australia safe and to strengthen our military and Defence Force systems, in turn countering threats at home and keeping our defence and security forces strong. There can be no greater responsibility for government than the defence of Australia and Australia's interests. The Labor government has ended the decade-long gap in strategic analysis and defence reform to create a smarter, stronger and more adaptable system and an organisation that can defend Australia, our people and our interests. This bill is further proof of the commitment to the ongoing reforms.

In my electorate, I am fortunate to have many of Australia's Defence Force personnel based at Puckapunyal and the Monegeetta Proving Ground Complex, which is why I am so passionate about continuing the support for our defence and military justice system and will wholeheartedly support this bill. A couple of weeks ago at the Puckapunyal Army barracks I attended the dedication of the Australian Defence Force's Puckapunyal memorial chapel. The chapel was completed on 31 January this year and provides a nondenominational facility cond­ucting services and community activities for the soldiers and families within the Puckapunyal community. Sadly, however, it has been used as the venue for a number of memorial services for fallen soldiers. It is an important part of the Tobruk Barracks in Puckapunyal.

I am pleased to have this opportunity to speak on this bill so I can talk about the importance of strengthening our military justice system and supporting our Defence Force community, such as that in the heart of my community of Puckapunyal. Our Puckapunyal units play a big role in enhancing Australia's Army capability. The Puckapunyal Military Area is one of the largest training areas for soldiers in Australia and it is a world-class facility that plays a vital role in preparing soldiers for combat, including our troops in Afghanistan. It covers some 44,000 hectares of undulating box ironbark forest and grassland and is one of the Defence Force's most heavily used training facilities. It has had new facilities built and others upgraded.

The Macedon Ranges is the home to the Monegeetta Proving Ground Complex in my electorate and it is renowned for its vehicle proving and test capabilities. In November last year I was joined by the Minister for Defence Materiel, Jason Clare, to open the $35 million expansion of the complex. We were given the opportunity to tour and inspect the latest equipment to be used by Australian troops in battle that is put to the test at these new facilities. It is all about making sure that our troops have the right equipment to do their job. As we all know, our troops rely on this equipment in battle. The equipment needs to be battle ready and safe, which is why it is crucial that we test it thoroughly before we put it in their hands.

The Monegeetta Proving Ground Com­plex tests equipment before it is manuf­actured to ensure it does the job it is supposed to do in the conditions faced by our troops; ensures electrical equipment and power generators and batteries will work in any weather; tests vehicles to measure handling and stability on any terrain; and uses thermal imagery testing to measure how equipment performs at night and in other low-light conditions. Equipment is subjected here to the same kinds of conditions our troops face on operations, including rugged terrain, extreme weather and night operations.

The complex consolidates the two existing test facilities, one at Maribyrnong and the existing facilities at Monegeetta, into the state-of-the-art precinct. The $35 million expansion of the Monegeetta complex includes all-weather testing chambers, a new enclosed weapons facility and a bigger heavy vibration testing facility. This site was also a fantastic investment for the local economy, with the Gillard government's funding and commitment translating to more than 50 full-time jobs in the Macedon Ranges.

In May 2009, the government released the most comprehensive Defence white paper ever produced by an Australian government. This blueprint will create one of the most flexible and versatile defence forces in the world and deliver around 100 Joint Strike Fighter aircraft, 12 new submarines, eight maritime patrol aircraft, up to seven unman­ned maritime surveillance aircraft and eight new Future Frigates. We have also delivered the first Defence capability plan since 2006, which set out over $60 billion of investment in defence equipment

The government is providing more funding for defence than ever before. We have given a commitment to grow the Defence budget by about three per cent average in real annual growth until 2018, providing long-term planning and certainty for defence. We have provided additional funding for health care, including $83 million for mental health reforms and $62 million for an ADF family healthcare trial. The government has significantly upgraded our cybersecurity capabilities in defence, with the opening of the Cyber Security Operations Centre in the Defence Signals Directorate.

Australia's military justice system underpins discipline and command struc­tures, and it is crucial to operational effectiveness, maintaining command and retaining our people and reputation. It is critically important for the men and women of the ADF that they have access to an effective military justice system. An efficient and fair military justice system is a key foundation for the excellent service discipline that places the ADF amongst the world's best militaries. While we move to a permanent solution for the military justice system that is in line with chapter III of the Constitution, I support this bill and wish it a speedy passage.

Stephen Smith (Perth, Australian Labor Party, Deputy Leader of the House) Share this | Link to this | Hansard source

I thank the members for Fadden, Moreton, Ryan, Page and McEwen for their contribution to the debate. The background and context to this much needed Military Justice (Interim Measures) Amend­ment Bill 2011 is that the High Court, in August 2009, found unanimously that the provisions of the Defence Force Discipline Act 1982 establishing the Australian Military Court were invalid because those provisions did not meet the requirements of chapter III of the Constitution. Parliament then enacted the Military Justice (Interim Measures) Act (No. 1) 2009, which reinstated the pre-2007 military justice arrangements. The reinstate­ment of the pre-2007 military justice system was required to allow time for the consideration and development of options for a new military justice system which would meet the requirements of chapter III of the Constitution.

Regrettably we have not been in a position to progress such legislation in a timely enough manner to avoid the following danger—the danger that the Military Justice (Interim Measures) Act (No.1) 2009, which provides for a tenure of up to two years for the Chief Judge Advocate and the judge advocates, is due to expire in September this year. We cannot guarantee that necessary legislation will be enacted before September this year. As a consequence, this bill seeks to continue the appointment, remuneration and entitlement arrangements for the Chief Judge Advocate and the judge advocates for a further two-year period or until such time as the Minister for Defence declares, by legislative instrument, a specified day to be a termination day, whichever first occurs.

The Attorney-General and I and our respective departments, the Department of Defence and the Attorney-General's Department, are currently working to finalise the details of a Military Court of Australia bill and associated consequential and transitional provisions. It is not expected that the bill will be introduced into parliament in the course of this session; rather, it is expected to be introduced in the next session.

As you would appreciate, I have not had the opportunity to listen in full to the contributions of the members who have contributed to this debate. I think that the substance of their contributions has been firstly to impress upon the parliament and the government the importance of introducing general military justice legislation and, secondly, support for this interim measure, which will continue to keep in place the pre-2007 military justice arrangements. I will inspect Hansard in the usual way. If there are any matters which require response from me, I will correspond with the members directly. I thank members and I thank the House.

Question agreed to.

Bill read a second time.