Stuart Robert (Fadden, Liberal Party, Shadow Minister for Defence Science, Technology and Personnel) Share this | Link to this | Hansard source

I rise on behalf of the coalition to lead some comments on the Military Justice (Interim Measures) Amendment Bill 2013, which extends the interim measures applicable to the military justice system following the invalidation of the act establishing the Australian Military Court in 2009. This is the second time I will speak on an interim measures military justice bill—almost two years to the day that I spoke on the last interim justice bill. The interim measures are about the ability to actually pay the current judges who sit on the tribunals because we still do not have a military justice bill in the House to debate—staggering I know, unbelievable at best.

A little history is always good. The Australian Military Court was established in 2007 in a bipartisan series of legislation following a number of Senate committees and other reports. On 26 August 2009, the High Court handed down a decision in Lane v Morrison that found the Australian Military Court unconstitutional. The High Court found unanimously that the provisions of the DFDA 1982 establishing the Australian Military Court were invalid because it purported to exercise judicial power over the Commonwealth but did not meet the requirements of chapter III of the Constitution. Therefore, the interim measures bill was put into the parliament in 2009 to deal with the issues at hand and provide interim measures so that judges and other judicial officers could be paid.

We were told by Minister Faulkner at the time, in 2009, that this was about rectifying the military legal problems and that it would be afforded the government's highest priority. Yet by 22 June 2011 we still had no bill in the House to deal with Australian military justice. So the first interim measures came in, and here we are two years later—four years after the Minister for Defence said, 'this will be afforded the government's highest priority'—and we are still passing interim measures bills so that justices can be paid, because this government cannot get a bill together to put in place a military court that satisfies the constitutional requirements. It is simply and utterly staggering. But when you look at the litany of this government's highest priorities, even in Defence, it is staggering. I will read a paragraph from my speech on 22 June 2011:

and, surprise, surprise, here he is again—

Well, Member for Moreton, you came in on that platform, you came in spruiking the fairness of veterans' pensions. After six years, where are we? What have you done, sir, to ensure that military pensions for DFRDB are properly indexed? What has the member for Moreton done? The answer is: nothing.

No, I won't take a question, Member for Moreton, so sit yourself down and find a way to explain to your constituents why, in six years, you have done nothing for the veterans of our country. In 2009, it was 'the highest priority to address the issue of military justice.' It was the highest priority to index military pensions. Nothing was done in six years. Do you know what another highest priority was, Mr Deputy Speaker? Defence of the realm and national security were the highest priority. Prime Minister Rudd issued the first national security statement and promised that every single year he would update that. He never updated it, and the current Prime Minister has done one. We have had two in six years—and national security is the 'highest priority'. In fact, national security is of such a high priority that the current Prime Minister would not attend the National Security Committee of cabinet; she would send her bodyguard. That is how much 'high priority' the Prime Minister puts on national security.

An honourable member: One of the members of the National Security Committee told us.

Goodness! Would that have been Kevin? Who would have thought! If national security is so important, why has this government cumulatively cut $25 billion from defence—statement of fact? Why, if it was such a high priority? I am sick and tired of this government's 'highest priorities' when it comes to defence.

We had the budget handed down on Tuesday. Defence apparently did well: a 2.25 per cent increase in the budget. So it kept up with CPI. But when you read through it—their great announcement that there would be $2.9 billion for electronic attack warfare Growlers, how much extra money did the government give for Growler attack? Was it $200 million? $2.7 billion is absorbed.

Bruce Scott (Maranoa, Deputy-Speaker) Share this | Link to this | Hansard source

I remind the member for Fadden: the bill before the Federation Chamber is the Military Justice (Interim Measures) Amendment Bill 2013. I would just like to draw his attention to that and bring him back to the bill before the chamber.

Stuart Robert (Fadden, Liberal Party, Shadow Minister for Defence Science, Technology and Personnel) Share this | Link to this | Hansard source

Thank you, Mr Deputy Speaker. I am simply looking at what the last Minister for Defence said; we are onto our third in six years. He said it was the highest priority. To understand what the minister says when it comes to 'highest priority', a history lesson is also worthwhile.

Let me conclude with another paragraph out of the last speech I gave on this bill—which was to provide interim measures—two years ago. I said:

That is what I said two years ago. I went on:

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

Mr Deputy Speaker, I rise on a point of order. I would ask that the member for Fadden withdraw the term 'rotten'—

Stuart Robert (Fadden, Liberal Party, Shadow Minister for Defence Science, Technology and Personnel) Share this | Link to this | Hansard source

You goose! Sit down.

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

And calling me a 'goose' as well.

Bruce Scott (Maranoa, Deputy-Speaker) Share this | Link to this | Hansard source

The member for Moreton will resume his seat. The member for Fadden will assist the chamber by withdrawing the comment 'rotten'.

Stuart Robert (Fadden, Liberal Party, Shadow Minister for Defence Science, Technology and Personnel) Share this | Link to this | Hansard source

I withdraw the word rotten.

Bruce Scott (Maranoa, Deputy-Speaker) Share this | Link to this | Hansard source

Have you concluded your remarks?

Stuart Robert (Fadden, Liberal Party, Shadow Minister for Defence Science, Technology and Personnel) Share this | Link to this | Hansard source

I have concluded my remarks.

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

We asked that he withdraw the name-calling, and the member opposite—

Bruce Scott (Maranoa, Deputy-Speaker) Share this | Link to this | Hansard source

He withdrew the word 'rotten'.

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

The member for Moreton asked him to withdraw the name he was called. The member refused to do so.

Stuart Robert (Fadden, Liberal Party, Shadow Minister for Defence Science, Technology and Personnel) Share this | Link to this | Hansard source

To assist the House, I withdraw unconditionally.

Bruce Scott (Maranoa, Deputy-Speaker) Share this | Link to this | Hansard source

The member for McEwen will resume his seat. The member for Fadden has unconditionally withdrawn his comments. The question is that the bill be read a second time. I call the member for Moreton.

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

I rise to speak on the Military Justice (Interim Measures) Amendment Bill 2013, a piece of legislation that I know a lot about. I would have thought that the shadow Defence spokesperson would have looked at the legislation and made some contribution. Obviously he is not that familiar with military justice. However, perhaps he will make the time to look into it. Justice in the military is obviously a complicated issue. It is that classic intersection between the personal rights of a member of the ADF and the national interest. Historically, the justice meted out in the military has been quite severe. If you are a member of the ADF, something as simple as falling asleep at work—which could happen in this parliament and might involve ridicule—could result in a significant loss of life among your colleagues, and therefore the penalty for falling asleep on your watch is quite significant. So there are different standards of justice in the military, and appropriately so. Obviously, they have evolved over the years. Hopefully, we are at the last and most logical iteration and, in light of the High Court's decision, this additional bill will bring resolution.

I should declare a slight interest in this because in my spare time—not that I have much—I am a legal officer, a flight lieutenant, in the RAAF. So it is an area of law that I am particularly interested in. And certainly the High Court challenge in the case of Lane and Morrison changed the approach to military justice. I would like to mention a couple of people from my electorate who are also legal officers in the RAAF—Uso Akari and Mike Nichols. They are two lawyers who give their time to go and work in the reserves. I mention them because they are from my electorate—I could mention many others. I should also mention our panel chair, David Montgomery, who does a great job. He has provided significant amounts of advice to me as to how this legislation should proceed—which I have done my best to pass on, I assure you, Monty. But getting it right does take a little bit of time.

The history of this legislation, as stated earlier by the member for Moncrieff, is that there has been a bipartisan approach. The Australian Military Court was established in 2006, comprising a chief military judge, two permanent military judges and a part-time reserve panel of judges—it is important to get that balance right. At the time, the Howard government hoped that the Australian Military Court would satisfy the principles of impartiality and judicial independence. I think there was advice about the implications under the Constitution and that it would actually have contravened chapter III of the Constitution, but people made the call at the time. I do not begrudge the Howard government, the defence minister of the time or the Attorney-General; it was a reasonable call to make. Obviously, in hindsight it was the wrong call. I do not fault the logic of the justices in the Lane and Morrison case. However, we do need to get it right and, despite all the bluff and bluster of the shadow spokesman for defence, we need to get it correct. Having a look at the type of people who will be able to step up is obviously one of the reasons there has been some delay in making sure that we get it right.

This interim measure, hopefully, will not have effect for long but will be a precursor to a system of justice that will support the individual member of the ADF but also apply the military discipline that is so important in peacetime in places such as Amberley. But it has to be the same military justice system that is operating on the front line in Afghanistan. As we heard from the Minister for Defence this morning when he addressed the parliament, there can be incredible stress placed on our ADF personnel, whether they be on ships, in the air or at the front line. They have to make incredibly quick calls about the rules of engagement and how they will operate in certain circumstances—this is especially so in places like Afghanistan, where the Taliban are working alongside you, in secret, with the intent of doing you harm. So it is important to get the right legal advice and the right rules of engagement and to know how they will operate.

The modern soldier is a very skilled operator. The standards that we see in the ADF are incredibly high. I first encountered the ADF through the parliamentary participation program, when I spent a week out at Amberley. I was blown away at how professional our ADF personnel were, particularly those in the RAAF—I say that because all of my cousins are in the RAAF. In fact, my cousin is in the media at the moment. I was speaking to her on Monday night. It is amazing because of the phone links. They are just going about their business in 51 degree heat with full body armour, but with modern communications they can just phone home as well. The modern world has particular challenges but the modern military justice still has to go back to the core basics of maintaining discipline while being fair, and of entitling people to the appropriate representation. I commend the legislation to the House.

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

I rise to speak on the Military Justice (Interim Measures) Amendment Bill 2013. Today's bill will extend the interim regime established by the Military Justice (Interim Measures) Act (No. 1) 2009 following the High Court's invalidation of the original legislation establishing the Australian Military Court in Lane v Morrison in 2009. The Labor government previously announced details of the Military Court of Australia Bill 2012 as legislation to conclude the interim measures; however, as I understand it, the government has not yet adequately worked through the many unresolved legal issues in that bill. Therefore, the coalition supports these interim measures as drafted.

The interim regime provides for the appointment and remuneration of the Chief Judge Advocate and other statutory office holders on a fixed tenure of four years, which will expire in September 2013. The purpose of today's bill is to extend their tenure for an additional two years or such lesser period as the Minister for Defence specifies by legislative instrument.

From my many engagements with the ADF I know that all Australian Defence Force members take their roles and the responsibility that comes with being in the ADF very seriously and act accordingly. It is true, however, that we have a criminal law system set up with courts to deal with transgressions against the law, and in the same way we have encoded in the Defence Force Discipline Act 1982 the transgressions against the law by servicemen and servicewomen which, in their conduct through the ADF, are not civilian in nature and should be dealt with by a specific military court, not just a federal magistrate. The concept of the Military Court of Australia is therefore a recognition that the role of Australia's military justice system is to support command in reinforcing discipline and enhancing operational effectiveness. In terms of serious service offences, it takes the adjudicatory role function away from the ADF chain of command, which I will touch on later, and may comprise judicial officers who have a genuine understanding of the nature of service in the ADF by reason of their experience or training.

The establishment of an independent military court is not a new issue. The Senate Foreign Affairs, Defence and Trade References Committee conducted an inquiry into the effectiveness of the military justice system, and in that report it recommended that the Australian Military Court be established for serious service offences committed by ADF personnel. At the time, the committee recognised reforms that had been undertaken in other countries, including the United States of America, Canada and the United Kingdom. It recognised that there is a lack of impartiality in courts martial and that there is a growing international trend towards independent military judicial officials in recognition of the fact that allowing service personnel access to independent and impartial tribunals makes for a more effective military justice system.

The Howard government implemented 32 of the 40 recommendations and established the Australian Military Court on 1 October 2007. However, in August 2009, as a result of the Lane v Morrison case, the High Court of Australia unanimously found that the provisions of the Defence Force Discipline Act 1982 and provisions which created the Military Court were constitutionally invalid, as Commonwealth judicial power could only be exercised under chapter III of the Constitution. The Australian Military Court was therefore suspended, and a bipartisan approach was taken with the Attorney-General and the Minister for Defence to return serious service offences to the old approach—namely, the system of courts martial and Defence Force magistrate trials. During that process, given that all convictions recorded by the AMC between October 2007 and 26 August 2009 were consequentially invalid, legislation was passed to give effect to many of the punishments and orders made by the AMC, and punishment was reviewed for those convicted under the AMC practice. It has taken significant time to fully consider legislation that is in concordance with the use of Commonwealth judicial power under chapter III. The issue was sidelined, unfortunately, when the bill presented in June 2010 lapsed when parliament was dissolved on 19 July 2010, when the federal election was called.

I would like to take this opportunity to comment on those lingering legal issues around the establishment of the Military Court of Australia. In the submissions that have been made over the years about this issue, there are two main concerns about the structure and function of the court. First, the Military Court of Australia, by design, will not feature a jury process, normally afforded to all Australian citizens in section 80 of the Constitution, which states:

In particular, the Returned and Services League, or RSL, is concerned that a court with only one military judge acting alone would be in contravention of the rights normally afforded to all Australian citizens, and that includes our servicemen and servicewomen. The original explanatory memorandum to the Military Court of Australia Bill 2012 claimed that a Military Court of Australia would be 'compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011' by engaging the following rights: the right to a fair trial, which means 'a fair and public hearing by a competent, independent and impartial tribunal'; freedom from arbitrary detention; the right to humane treatment in detention; and the right to privacy.

In terms of establishing a competent, independent and impartial tribunal, the court was to be set up such that people serving presently in the ADF would not be eligible to be a judge or federal magistrate under the court, and furthermore that the Military Court would be independent from the military chain of command. Importantly, in line with the practices of the Federal Court of Australia, the court would involve procedures for making appeals from the Appellate and Superior Division of the Military Court for decisions in the General Division of the MCA. Of course, following that process, appeals can be made to the High Court of Australia.

There would be offences contained in schedule 1 which delimit the types of classes and the circumstances under which someone alleged to have committed an act is to be tried. Those are class 1 offences, including offences relating to operations against an enemy and desertion, as well as offences including murder, manslaughter and serious sexual offences, which must be heard and determined by the Appellate and Superior Division of the Military Court of Australia. This is in line with serious criminal offences at the civilian level, which are heard by judges of a superior court—that is, the Supreme Court, rather than a magistrate's court. Other offences, as the explanatory memorandum notes, relate to service offences that go to the very core of maintaining discipline and morale in the ADF: abandoning or surrendering a post, harbouring enemies, failing to carry out orders, mutiny, desertion and dangerous conduct.

I note that the Senate Foreign Affairs, Defence and Trade Committee in 2012 advised that it would not conduct a parallel inquiry into this issue given that the Senate Legal and Constitutional Affairs Committee was also investigating the issue. I note that its report was published on 9 October 2012. During that process the coalition continued its deliberations and issued a dissenting report. The Liberal senators made three recommendations based on their concerns. They ultimately decided that all members of the ADF are entitled to the same rights and protections that other Australians receive in a chapter 3 court, and therefore recommended that the bill be amended to include the right to trial by jury for all offences which would customarily be listed on indictment in the civilian context. Therefore, the right to trial by jury should be afforded for service offences with a punishment of more than 12 months imprisonment.

Secondly, they acknowledged the concerns of groups like the Australian Defence Association that permanent or active reservists would be ineligible for appointment to the Military Court, and as such recommended that, to the extent that chapter 3 of the Constitution would allow for permanent reservists and standby reservists to be appointed as judicial officers of the Military Court, as a consequence the available pool would be expanded to include people who have an understanding of military service and as such can make a meaningful contribution to the Military Court itself. I strongly agree that it is all very well for judicial officers to have an understanding of military service, but real experience of service and of battle provide an insight into the challenges of military decision making that a mere 'suitable understanding' cannot possibly achieve. The coalition senators noted that an important consequence of this recommendation would be to increase confidence in the court from both within the ADF and in the general public.

I noted in my maiden speech my appreciation for the sacrifices that our troops make around the world. I also highlighted the fundamental importance of clear rules of engagement prior to entering any conflict. I said at the time:

The ongoing consideration of the Military Court of Australia is an important part of that process of supporting and protecting our troops which, I have noted, is integral to the morale and wellbeing of ADF personnel. The coalition will continue to work in a bipartisan manner to ensure that all issues are resolved appropriately.

More generally, and ultimately, it is up to the federal government to support its troops. This Labor government has cut more than $25 billion from Defence, which has crippled the Defence industry sector. In the last three years the industry has lost more than 5,000 jobs and will continue to shed jobs in light of this government's mismanagement of Defence. In 2009 the then Minister for Defence, Senator John Faulkner, predicted that the local workforce would be as high as 34,000 by 2013. Today, however, that figure stands between 24,000 and 25,000 local jobs according to the Defence Materiel Organisation. Clearly, the Labor government's savage cuts to Defence are translating into a struggling Australian industry.

This is unacceptable for what is a vital strategic sector of our economy. We should be supporting the growth of a home-grown Defence industry, not continuing to pull the rug out from underneath it. The Defence community has, since 2007, being represented by a Labor government that does not listen or support it, nor even action its own 2009 Defence white paper. More recently, the Minister for Defence released the 2013 Defence white paper, which was full of impressive photo opportunities but had no plan, no schedule and no money. In a document that talks boldly of new ships, new submarines and new aircraft there is no dollar figure listed for their construction.

At the next election Australians have a choice between the Labor Party, which offers empty rhetoric on defence issues and has no intention of even paying lip service to restoring more than $25 billion of cuts, and a new government with a proven track record, a coalition government that will restore hope, reward and opportunity for our defence forces.

Mike Kelly (Eden-Monaro, Australian Labor Party, Minister for Defence Materiel) Share this | Link to this | Hansard source

I thank the member for Ryan for her comments and I congratulate her son for his service. Please pass on our regards and thanks to him for that service, particularly having returned from the difficult environment of Afghanistan. I have had the opportunity to observe and understand the nature of that service.

This obviously has been an issue that has been fraught for some time. There have been many attempts to navigate some of the vagaries of the issues thrown up by military justice. In reply to some of the comments that were made about our commitment to defence spending, as you have seen in this budget, that spending has actually increased. In my quarter of a century of involvement in security policy in this country and in the Defence Force, I have never seen a more significant delivery of capability to the Defence Force in that time. It is a very exciting time for the Defence Force. We have carefully balanced the challenges of defence capability planning and are delivering capability that is going to set this country up very well for its security needs and for its ability to respond to disasters both nationally and within the region as well. I congratulate our service personnel, our service chiefs and all of those within the Defence Materiel Organisation who have helped us manage that difficult challenge of juggling the delivery of that capability with our revenue needs.

In summing up the debate on the Military Justice (Interim Measures) Amendment Bill 2013, I would like to thank all of those who have taken an interest in this issue and who have contributed to the debate. As outlined in the explanatory memorandum to the bill, the High Court on 26 August 2009 found unanimously that the provisions of the Defence Force Discipline Act 1982 establishing the Australian Military Court were invalid because they were not consistent with the requirements of chapter 3 of the Commonwealth Constitution.

The Military Justice (Interim Measures) Act (No. 1) 2009 was subsequently passed by this parliament to reinstate the pre-2007 military justice arrangements. This act ensured that military discipline arrangements, in particular the system of court martial and Defence Force magistrate trials, continued to operate effectively. The reinstatement of the pre-2007 military justice system was also required to allow time for the consideration and development of options for a new military justice system consistent with the requirements of chapter 3 of the Constitution.

The Military Justice (Interim Measures) Act (No. 1) 2009 provided for a tenure of up to two years for the Chief Judge Advocate and the judge advocate's panel. The Military Justice (Interim Measures) Amendment Bill 2011 previously extended the appointment arrangements for the Chief Judge Advocate and judge advocate's panel for a two-year period. However, this tenure is due to expire in September.

The Military Justice (Interim Measures) Amendment Bill 2013 will continue the appointment, remuneration and entitlement arrangements for the Chief Judge Advocate and judge advocate's panel for an additional two years or until the Minister for Defence declares by legislative instrument a specified day to be a termination day, whichever is sooner. The purpose of Australia's military discipline system is to support command in maintaining and enforcing service discipline in order to enhance operational effectiveness. A military discipline system that supports the authority and effectiveness of commanders is of vital importance in the operation of the Australian Defence Force. This bill is one contribution in support of an effective military discipline system.

In closing, I would also like to say that both the coalition and the government have a bipartisan approach to the funding of the Defence Force. It is pleasing to see there is now certainty in that respect going forward. I commend the bill to the House.

Question agreed to.

Bill read a second time.

Ordered that this bill be reported to the House without amendment.