Kevin Andrews (Menzies, Liberal Party, Minister for Defence) Share this | Link to this | Hansard source

I present the explanatory memorandum to this bill and move:

That this bill be now read a second time.

The Defence Legislation Amendment (Military Justice Enhancements—Inspector-General ADF) Bill 2014 amends the Defence Act 1903 to provide transparency, predictability and accountability in decision making affecting Australian Defence Force members. It will do this by enhancing the independence of the Inspector-General of the Australian Defence Force and enabling regulatory reform of the Australian Defence Force's redress of grievance, investigation and inquiry practices.

Following detailed review of defence's system of inquiry, investigation, review and audit, the Australian Defence Force concluded its current arrangements for these processes are unnecessarily complex, inefficient and legalistic. I am conscious of the need to support commanders to make good decisions, not to impede or discourage them from doing so. The complexity and inflexibility of current arrangements do not provide that support. I am also conscious of the need for robust, professional, credible and independent oversight of the military justice system.

Finally, I am conscious of the need to ensure that complex and sensitive matters concerning the Defence Force, such as those events that come to my and the Chief of Defence Force's attention, including the death of ADF members related to, or arising from their service, can be subject to efficient and specialised internal inquiry and review.

Such inquiries currently enjoy provisions overriding the privilege against self-incrimination so that underlying causes can be ascertained—such as, for example, in the Sea King Board of Inquiry—and addressed to prevent recurrences. However, the abrogation of this privilege should not be capable of being abused to obtain evidence for the imposition of criminal sanctions against persons. Therefore the bill will prevent witness evidence obtained by the abrogation of the privilege against self-incrimination being used against that witness in service tribunals or civilian courts.

The bill:

These amendments to the Defence Act 1903 will facilitate regulatory reforms to:

The outcome of these reforms will be:

I commend the bill to the House.

Leave granted for second reading debate to continue immediately.

David Feeney (Batman, Australian Labor Party, Shadow Minister for Justice) Share this | Link to this | Hansard source

I rise today to speak on Labor's support for the Defence Legislation Amendment (Military Justice Enhancements—Inspector-General ADF) Bill 2014. This bill continues the bipartisan approach to reforming the military justice system that has been pursued by successive governments and that has continually marked this debate, to our collective credit. It entrenches the independence of the inspector-general by separating that position from the military chain of command. It thereby enables the inspector-general to investigate a broad range of matters as requested by the minister.

This bill intends to amend defence legislation in order to enhance the independence, expand the investigative options and enshrine the safeguards in relation to the role of the Inspector-General of the Australian Defence Force. It amends the Defence Act 1903 and will make clear the emphasis on transparency, predictability and accountability in decision making affecting members of the Australian Defence Force.

The explanatory memorandum makes plain six features of this bill, which I would now seek to highlight. Firstly, the bill makes clear that the Inspector-General of the Australian Defence Force mechanism for internal audit and review of the military justice system is independent of the ordinary chain of command.

Secondly, it provides for the Minister for Defence to direct the inspector-general to investigate or inquire into a matter concerning the Defence Force.

Thirdly, it makes it plain that the inspector-general may be prescribed investigative functions that relate to a member's service in the Defence Force other than the military justice system.

Fourthly, it makes it clear that regulations can be made or prescribed that abrogate the privilege against self-incrimination for witnesses appearing before the Inspector-General of the Australian Defence Force or, indeed, inquiry officers appointed by the inspector-general, as is the case for boards of inquiry and other types of inquiry. The legislation ensures that testimony given by a witness under any such regulations attracts a statutory bar on it being used against the witness giving it, except in proceedings relating to the giving of false evidence to an inquiry.

Fifthly, the bill requires the Inspector-General of the Australian Defence Force to prepare an annual report relating to the operations of the inspector-general, and for that report to be duly tabled in parliament.

Lastly, the bill strengthens the independence of the inspector-general by making it clear that where the inspector-general is directed to conduct an inquiry or investigation by the Chief of the Defence Force, the inspector-general may cease the inquiry or investigation if the inspector-general forms a belief that the continuation of the inquiry or investigation is not otherwise warranted having regard to all the circumstances.

By separating the inspector-general from the military chain of command, the bill ensures that the inspector-general cannot be forced or ordered down an avenue that he or she considers inappropriate. This greater independence, and the strengthening of this independence, provides our Australian Defence Force with the ability to investigate failures or flaws in the military justice system and its administrative processes, as well as particular incidents or events, with greater confidence in the integrity, reliability and independence of the ensuing investigations. The transparency and accountability of the inspector-general will also be improved through the requirement for an annual report and for that report to be tabled in this parliament.

This bill, more generally, goes to the ever-evolving and more open culture of the Australian Defence Force. It is another step in the process of ongoing reform of our military justice and defence personnel administrative processes. Labor supports this bill and I commend it to the House.

Gai Brodtmann (Canberra, Australian Labor Party, Shadow Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I rise today to speak on the Defence Legislation Amendment (Military Justice Enhancements—Inspector-General ADF) Bill 2014. As my colleague has said, this is a non-controversial bill, which Labor supports. We support it because it puts further emphasis on transparency, predictability and accountability in decision making affecting Australian Defence Force members. That can only be a good thing.

It does this by further strengthening the independence, powers and privileges. The bill separates the inspector-general from the ordinary chain of command, ensuring that the IG cannot be forced or ordered down an avenue that he or she considers inappropriate. It enables the IG to be used to investigate a broad range of matters as requested by the minister or the Chief of the Defence Force. It makes clear that privilege against self-incrimination is abrogated in relation to IG inquiries and that such evidence cannot be used in civil or military proceedings. It requires the IG to prepare an annual report relating to the operations of the IG for tabling in parliament. It gives the IG discretion to cease any inquiry directed by the CDF.

It continues the bipartisan approach to reforming the military justice system that has been pursued by successive governments. These are all positive steps for the Australian Defence Force and for our country more broadly. That is why Labor is supporting this bill in the House.

The Inspector-General of the Australian Defence Force was established by the CDF in 2003 to provide a means for review and audit of the military justice system independent of the ordinary chain of command. The IGADF was made a statutory position in 2005. It is also an avenue by which failures of military justice may be exposed and examined so that the cause of any injustice may be remedied.

In relation to the military justice system, the IG receives submissions and investigates complaints, conducts performance reviews, provides advice and contributes to awareness and improvement. Submissions may be received by any person on any matter concerning military justice—for example, abuse of authority or process; denial of procedural fairness; avoidance of due process; cover up and failure to act; unlawful punishments; victimisation, harassment, threats, intimidation, bullying and bastardisation; and suggested improvements to military justice.

As you can see, the IG plays an incredibly important role within the ADF. According to the Defence Annual Report 2013-14:

The operating tempo in the Office of IGADF remained relatively high in 2013–14 and was characterised by increases in the number of submissions received for investigation or inquiry and the number of military justice performance audits completed into the military justice arrangements of ADF units.

…   …   …

During 2013–14, the IGADF received 60 inquiry submissions, an increase of approximately 10 per cent on the previous year. In recent years, the trend has been that submissions disclose issues of greater complexity than in previous years, and this continued in 2013–14. During the year, the IGADF resolved 42 submissions by way of inquiry, investigation and review.

…   …   …

The IGADF conducted 49 ADF military justice unit audits, or audits of about 10 per cent of all auditable ADF units. In three of those units, potential material deficiencies were identified. In all, a total of 714 recommendations and suggestions to improve military justice arrangements, practices and procedures were made during 2013–14. The overwhelming majority of the recommendations and suggestions related to minor compliance or procedural issues.

I am continuing to quote here, Mr Deputy Speaker:

During the conduct of military justice unit audits, 2,552 ADF personnel participated in focus group discussions, raising to 24,641 the total number of focus group participants since the pilot program commenced in 2004. Focus group survey outcomes in 2013–14 indicate a stronger endorsement of, and confidence in, the military justice system and the chain of command to take action to resolve military justice problems.

There is also strong evidence to indicate that incremental cultural change under Pathway to Change: Evolving Defence Culture occurred within the ADF during the year.

During 2013–14, the Office of IGADF conducted 50 face-to-face courses and seminars at locations around Australia, attended by 1,599 ADF members. Of those, the vast majority attended inquiry officer familiarisation training. A further 1,058 undertook the IGADF online inquiry officer familiarisation course on campus. Other practical training opportunities offered by the IGADF included seminars on administrative sanctions, complaint handling and conducting quick assessments.

The principal themes affecting the ADF military justice narrative in 2013–14 included the attention given to cultural issues addressed in Defence’s Pathway to Change policies, the work of the Human Rights Commission’s examination of gender issues throughout the ADF, and the continuing speculation as to the future arrangements for ADF investigation, inquiry, review and redress of grievance processes arising from the finalisation of the Defence Re-thinking Review.

More broadly, in the public domain, credit for dealing with the reportedly large numbers of cases of abuse within Defence over time exposed by the DLA Piper Report and the activities of the Defence Abuse Response Taskforce tended to be counterbalanced by continuing adverse media coverage of such cases, resulting in further reputational impact for Defence.

As Chief of the Defence Force, Air Chief Marshal Mark Binskin, has said:

… it's a time for continued reform for the ADF.

The role of the IG is absolutely fundamental to this continued reform, and I wholeheartedly support any measure which seeks to strengthen the role of the IG.

In closing, this bill provides our Defence Force with the ability to investigate failures or flaws in the military justice system and administrative processes, as well as incidents. It allows it to do that with greater confidence in the integrity, reliability and independence of its investigations.

This bill, more generally, goes to the ever-evolving and more open culture of the Australian Defence Force and continues the ongoing process of reform of military justice and Defence personnel administrative processes. Labor is very conscious of the need to ensure proper treatment of ADF members in terms of their pay, their housing, their health needs and other needs. But this bill reminds us that we must also ensure there are other protections of a more intangible nature, and these include ensuring that military justice is provided with safeguards.

It is a fact of life that sometimes a system of justice, be it civil or military, will not work as it should—that it needs improvements. And for this reason the possibility of redress must be present. In the ADF, the position of Inspector-General is part of this protection. This bill provides for significant improvements to the position of the Inspector-General, and I commend it to the House.

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

I rise to speak on the Defence Legislation Amendment (Military Justice Enhancements—Inspector-General ADF) Bill 2014. As noted by the other speakers, this has bipartisan support in the parliament. I commend the earlier speakers.

We have just, in this parliament, been honouring the 100th anniversary of the Gallipoli landing. Parliamentarians have paid their respects to those brave souls who died during that battle, acknowledged those who returned as very different people and also, generally, those who have fought for our country since that battle. Anzac Day is the very appropriate one day of the year when we do that—where we acknowledge our Defence Force personnel. Whilst it is important to acknowledge the past and to commemorate their sacrifice, we should also focus on those who are currently serving or who have recently returned and served their country. But many have returned and are suffering.

Obviously, as a nation we need to look after those who serve currently in the Australian Defence Force—those who may not yet have seen conflict. Obviously, we would hope that they do not, but that is the reality of the troubled world we live in. For those who are serving the country, being ready, willing and able to be sent to a conflict if it arises takes a certain sort of courage. We need to make sure that we look after the current serving members of the Army, the Navy and the RAAF. This legislation is part of that.

There are many professions which are a particular calling. I think that joining the military is one of those where higher standards are asked of you as an individual. Having their own justice system is a part of that. It is a higher calling to join the military but then, once you are in there, there are much higher standards. They are not just like parliamentarians' standards, where if you get in trouble then you are in trouble in the media, or—heaven forbid!—you could be called in front of the bar of the parliament to answer for what you have said. In the military there are particular standards. There have been 17 reviews into aspects of the culture of the Australian Defence Force since 1994. This is because the military always has to get that balance between appropriate justice and reasonable treatment of its service personnel and discipline. This bill is the result of the recommendations from these many reviews and is a small part of the slow and progressive changes being made to the modern ADF.

The purpose of this bill is to expand the role of Inspector-General of the Australian Defence Force and enhance the independence of that role. If we look back at some films, we can see different approaches to military justice. If we start back at the Boer War and look at Breaker Morant, we see that whilst the service personnel were granted their own military representative these were not fully briefed and they did not have the resources. There are other examples, such as A Few Good Men,where,while it is a Hollywood version, the focus is on making sure that the service personnel receive proper representation. This might be testing a few people, but they might remember the Blackadder episode where Blackadder was in trouble for shooting a pigeon and the person who was making the decision about the pigeon being shot was actually the commanding officer. This legislation before us is about making sure that there is a different chain of command. Rather than the legal representative answering to the commanding officer, instead there is seen to be an independent representative who can give frank and fearless advice given to their client, to the ADF member.

The military justice system is, by necessity, quite separate and distinct from our ordinary justice system. It obviously has the same principles but it serves a very important service and is crucial to the ongoing strength and efficacy of the Defence Force. If the military justice system fails, the consequences can be quite catastrophic. It can result in loss of morale and, critically, may eventually result in damage to operational effectiveness and could even put lives at risk. Morale is a very important component in the military, so it is important to get the balance right, particularly in Australia where our fighting forces have always been recognised around the world as not only independent and able to think on their feet but also a very effective fighting force.

The role of the Inspector-General of the Australian Defence Force was established in 2005. The inspector-general can not only inquire into matters directed by the Chief of the Defence Force but also into other ongoing military justice requirements: performance reviews if something has arisen; advising on matters concerning the military justice system, especially in terms of making improvements; and promoting military justice values across the Defence Force, which is all about making sure our soldiers, our sailors and our airmen are a tight unit. Obviously, the office of the inspector-general is independent of the normal chain of command, but it still fits within the broader defence umbrella. I note that there is a particular use of legal officers who are reservists who play an important role in this.

It was the Labor government in 2011 that announced a suite of reviews after an incident commonly referred to as the ADFA Skype incident. The defence minister at that time, Stephen Smith, said:

It is essential that the ADF and Defence promotes and enforces the highest standards of behaviour and creates an environment where complaints can be aired and appropriately addressed.

One of the amendments that the bill before the chamber will make to the Defence Act is in the description of the objects of part VIIIB. The amendment will make clear that the office of inspector-general is to provide the Chief of the Defence Force with a mechanism to audit and review the military justice system that is independent of the ordinary chain of command. It will also provide an avenue by which failures and flaws in the military justice system can be identified, examined and remedied. The bill consolidates the existing functions of the role of inspector-general and provides for some new functions. The amendments also limit the power of the inspector-general to only undertake such functions as are prescribed by the regulations. A function cannot be prescribed by regulation unless it relates to the military justice system or to complaints made by members of the Defence Force where the relevant complaint is about a decision, act or omission in relation to the member's service in the Defence Force, or deaths of members of the Defence Force where the relevant death appears to have arisen out of, or in the course of, the member's service in the Defence Force.

One of the crucial processes required to maintain the operation of the Defence Force is the redress of grievance process, or ROG. It is trite to say that a member of the Defence Force is required to obey lawful directions given by a superior officer. That is a strict obligation, and there are obviously consequences if the order is not followed. But when such a strict obligation rests on a person in the course of their duties, there must also be a form of redress for defence personnel where they consider that a decision, act or omission has had a detrimental effect on him or her. This is the redress of grievance process. The bill before the chamber addresses this process.

The inspector-general will conduct the redress of grievance process. The bill removes the ability to seek a review of the redress of grievance process by the Chief of the Defence Force but retains the right to have an external review by the Defence Force Ombudsman. The inspector-general is given wide powers of inquiry, including the power to end an inquiry once he or she is satisfied that the continuation of that inquiry is not warranted. The exception to that power is if the minister has asked the inspector-general to conduct the inquiry, in which case there will be no power to conclude the inquiry before it has been completed, getting that balance right between the parliament and the military process.

There have been some questions raised in some of the reviews about whether members of the Defence Force would see the inspector-general as a separate role or would see him or her as being too embedded in the ADF as a former senior ADF member. The independence of the position is reflected in the reporting requirements of the inspector-general. This bill ensures that the independence of the inspector-general is beyond question. The inspector-general, after the amendments, will effectively report directly to the parliament.

Under the Defence Act the Governor-General has power to make regulations with regard to the procedures and powers of the inspector-general. The bill provides that those powers include the power to make regulations compelling a person to appear as a witness before the inspector-general and to compel that witness to answer a question, even if the answer may incriminate them. As I said, it is a calling to join the military, but there is a higher onus on ADF members. Those amendments are important for the proper investigation of any inquiry by the inspector-general, especially where teamwork and morale might mean that people are not willing to go outside their group. ADF personnel commonly work alongside public servants and civilian contractors, as anyone who has been to a modern military base would recognise. Any inquiry may include evidence from people other than ADF personnel. Without regulations to compel that evidence, the inspector-general would only compel ADF personnel to give evidence in an inquiry.

The power to compel a person to appear at an inquiry and to answer questions is arguably a severe infringement on their civil liberty. To balance that power, the bill provides that any evidence given by a witness in those proceedings will not be admissible against the witness in any civil or criminal proceedings in any federal court or court of a state or territory or proceedings before a service tribunal. We can get as much information as possible into an inquiry.

This bill provides powers and procedures for the Inspector-General of the Australian Defence Force that will ensure the independence of that office and the proper and thorough investigation of complaints. It also ensures that our obligation to our Defence Force personnel under the International Covenant on Economic, Social and Cultural Rights to provide access to a statutorily independent person for investigation or inquiry and the International Covenant on Civil and Political Rights to provide a fair hearing of any criminal charges against them are being met.

I would like to acknowledge the many people who make the military justice system work. They are, particularly, the legal officers, especially the reservists—many of whom are at the bar or in private practice and then take on duties representing ADF personnel, usually for much lower rates of pay than they would receive in their daytime job. I want to acknowledge one in particular, David Montgomery, who was until recently the panel chair for South-East Queensland. He has done a great service to this nation and continues to do so in other capacities.

This bill is the result of a process initiated by the Labor Party, and I am happy to commend the bill to the House.

Bruce Billson (Dunkley, Liberal Party, Minister for Small Business) Share this | Link to this | Hansard source

I thank members for their erudite contributions to the debate on this bill to enhance the independence of the Inspector-General of the Australian Defence Force and I commend the bill to the House.

Question agreed to.