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

It is a great honour to speak on the Defence Legislation (Enhancement of Military Justice) Bill 2015 this afternoon because it makes amendments to the Defence Act 1903, Defence Force Discipline Act 1982 and Schedule 3 of the Military Justice (Interim Measures) Act (No. 1) 2009. The bill contains a number of important military justice and military discipline related amendments to the Defence Force Discipline Act 1982 (DFDA) and the Defence Act 1903 that implement certain recommendations from Defence reviews and reports, reactivate outstanding legislative proposals and deal with other issues identified in the routine use of these acts. It will make military justice enhancements to the existing military discipline system and extend the appointments of the current CJA and full-time judge advocate, who contribute to the effective operation of the military justice system and the dispensation of military discipline.

In summary, these measures will: clarify the character and status of service convictions for Commonwealth purposes; remove the provisions in respect of the trial of old system offences, or offences under the law prior to the Defence Force Discipline Act; create a service offence of 'assault occasioning actual bodily harm'; create a service offence of 'unauthorised use of a Commonwealth credit card'; clarify the elements of the service offence of 'commanding or ordering a service offence to be committed' under section 62 of the DFDA; enable the fixing of non-parole periods by service tribunals to overcome the problems associated with recognisance release orders; correct a technical error in the charge referral process; correct a technical error in the discipline officer scheme; replace dollar amounts as maximum fines in the DFDA with the more contemporary penalty units system; recognise the Director of Defence Counsel Services; and, finally, extend the period of appointment of the current CJA and full-time judge advocate. Essentially, this bill is part of a range of measures to improve the military justice system. Labor supports this bill. Labor supports any measure that will enhance the military justice system and ultimately improve the valued and unique culture within the ADF. I commend this bill to the House.

Just before I conclude, I would like to use this opportunity to thank the former Chief of Army, Lieutenant General David Morrison, for 36 years of exceptional service to Army and to our nation. In his farewell speech, David Morrison said:

I am an Australian soldier—always. Duty first, good soldiering. Goodbye.

I know that the focus in recent years has been on the former Chief of Army's extraordinary achievements and leadership on cultural change, particularly that famous YouTube video that went viral around the world where he called for those who cannot be part of an acceptable behaviour in Army to essentially get out. It was an incredibly powerful message. It was a strong message, a message that showed great courage and leadership, and we are all incredibly in awe of David Morrison for delivering that message at a really important time of cultural change in Army, and in the ADF more broadly.

Many would have seen the interviews that David Morrison has done not only on the eve of his retirement but also since then saying that he was an Army man first and foremost. He was deeply committed to good soldiering, as he said in his farewell speech, and deeply committed to ensuring that an Army was prepared for the challenges of coming decades. He delivered on all that and more. Not only did he create a better Army, a better equipped Army, a better trained Army, an Army that experienced unprecedented levels of operations and deployments, he also created the right capability environment for Army to succeed in the future, the right training environment for Army to succeed in the future and, most importantly, the right cultural environment for Army to succeed in the future. Again, I just want to use this opportunity to thank David Morrison for his exceptional service over 36 years. As he said in one of the interviews:

No one loves the Army more than me …

We do believe this, particularly from his commitment to change, in so many different ways, and his ensuring that Army was secured for the future.

In farewelling Lt Gen. David Morrison I would also like to wish all the best to the new Chief of Army, again an exceptional man with exceptional service to date and what promises to be an exceptionally bright future in advancing all the work that David Morrison has done over his nearly four decades of service to Army and to our nation. I look forward to working with the new Chief of Army to achieve those results. I again farewell very fondly former Chief of Army Lt Gen. David Morrison.

Russell Broadbent (McMillan, Liberal Party) Share this | Link to this | Hansard source

I thank the member for Canberra. I know the member for Gippsland would like to join with me, as member for McMillan, to identify with the words and expressions you have just spoken.

Andrew Nikolic (Bass, Liberal Party) Share this | Link to this | Hansard source

I also associate myself with the remarks of the member for Canberra, not just in relation to the outstanding service by Lt Gen. David Morrison but, of course, the new Chief of Army, Lt Gen. Angus Campbell. It is good to put his name on the record. He is a product of the 3rd Battalion of the Royal Australian Regiment, a member of our Special Forces, and a man who has not only served our country honourably in uniform but also within the interagency of the Australian bureaucracy. I am sure he will make a magnificent contribution as the incoming Chief of Army.

I appreciate this opportunity to address the House on the matter of the Defence Legislation (Enhanced Military Justice) Bill 2015. This bill is important to both Defence and to the wider democracy it serves, in addressing a range of matters, particularly the crossover of the military and the law. As someone who spent over three decades as a member of the Australian Regular Army, it is an issue that is certainly close to my heart, and it is something I will continue to maintain an abiding interest in.

However, before I focus on the specifics of the bill itself, I would like to make some general comments about the quintessential relationship between the dual professions of the military and the law. In many ways, Australia is a most fortunate country. Foremost amongst the reasons for this is the long-acknowledged and widely-accepted role of our modem military. In essence, unlike in some other nations, it sits ever ready, both vigilant and prepared, but always quietly in the background. In Marine Corps parlance it is semper fidelis, or 'always faithful'. Our Army's generals, and their service counterparts, are focused wholly on their military roles, not on supplanting civilian politicians or the bureaucracy that supports them. Around the globe, this acknowledged and 'set in stone' relationship between a civilian freely-elected government and a subordinate professional military is an increasing rarity. While Australians take defence and national security very seriously, including appropriately honouring our war dead and their sacrifice, we are in no way a military or even a militant nation. While the Australian Defence Force is relatively small in size, it is very professional and is committed to the nation it quietly and reliably serves.

This bill affords me the chance to highlight important elements of our military, the evolving military legal system, and also to curtail some myths and/or misimpressions of it and about it. The first such myth is that the military and the law have not very much to do with one another, or, in the very least, are strange or mismatched bedfellows. This, of course, is a fallacy. A professional military, rightly governed and directed by its civil masters, is rigorously, even punctiliously, attentive to both the rule of law and to the rules of war. Longstanding and diverse concepts such as the law of armed conflict, courts martial and rules of engagement all attest to this close and overlapping relationship. Indeed, a professional military and the law are very much connected, both externally—that is, the way a defence force functions as part of society—and internally, in the way it operates legally unto itself. The law is therefore ever present and in lockstep with the military.

The parliament, of course, wields the elements of our national power, which can be distilled to four things: the economic element of our national power—things like our fiscal, monetary and trade policies, security assistance, foreign aid, embargoes and so on; the diplomatic element of our power, resident most notably in the Department of Foreign Affairs and agencies like Defence; the informational element of our national power; and, in extremis, the military element of our national power. I speak of not just times of conflict, but also of its role to deter, compel, care for the homeland, or engage in peace support operations.

When it comes to the military dimension of our national power, the law determines how force can and should be applied. At the other end of the spectrum, it is woven throughout all the rules and regulations that underpin and dictate the lives of our service personnel. This bill focuses on the latter of these two dimensions: reform and amendment to internal legal arrangements.

However, just as important as what is contained in this bill is what its existence both connotes and demonstrates. This is the government's continuing commitment to the ADF and to the men and women who serve it, and, through it, all their fellow Australians. As the last decade has shown, the nation needs the Australian Defence Force today more than ever. And the tempo of their efforts is unlikely to abate in the near- to mid-term.

The spectrum of tasks we expect our troops to undertake is broad and complex. For example, our troops help to build bilateral and multilateral relationships, through joint training and exchanges. They provide domestic support to the civil power following floods and bushfires. They are always called upon to be a first responder when there is a humanitarian-assistance and disaster-relief contingency in our region, and there are many examples of that: Pakistan Assist; the Banda Aceh tsunami; the crisis at Fukushima; the flooding in Oro province; Tonga, and other regional areas. They have even been helping to stop Patagonian toothfish poachers and the exploitation of regional exclusive economic zones.

In one of my last jobs before coming into the parliament, I was a first assistant secretary in the International Policy Division in Defence, where we looked after our Defence Cooperation Program encompassing the 23 Pacific patrol boats that we have given to regional countries to help ensure that they can effectively police their exclusive economic zones with those Pacific patrol boats. We have seen the Defence department support the government of Timor-Leste in their time of need, further the cause of good governance in Solomon Islands, help stop people smugglers in our near region and rescue thousands of people at risk of drowning, and work on UN and multinational force operations and counter-piracy—everything through to high-intensity combat operations in places like Iraq and Afghanistan.

So the point of all this is: our expectation of our troops is great, which imposes an obligation on this parliament to continually support improvements to both the Australian Defence Force and our wider national security apparatus, whenever and wherever the circumstances warrant. So let me now highlight what is necessary and what lies at the heart of this bill, to explain how Defence might be improved by it and to touch briefly on the circumstances that lead to its consideration today.

This bill amends legislation relating to the military justice and discipline system and the overarching military justice system. The bill contains a number of modest, but no less important, amendments and reforms to the Defence Act 1903, the Defence Force Discipline Act 1982, and the Military Justice (Interim Measures) Act (No. 1) 2009. As the previous speaker highlighted, there are 11 key amendments and reforms, which together improve the overall quality and functioning of the current defence justice system, and I will just touch on those briefly.

The reforms clarify the legal character and status of service convictions by providing that a service offence is an offence against the law of the Commonwealth. The bill identifies the situations in which convictions for service offences may be disclosed under the Defence Force Discipline Act. It creates two new service offences from existing criminal offences, those being 'assault occasioning actual bodily harm' and 'unauthorised use of a Commonwealth credit card'. It clarifies the elements of the existing service offence of 'commanding or ordering a service offence to be committed'. It replaces the system of recognisance release orders with a system of fixing non-parole periods, which is relevant to the punishment regime. It replaces the system of fines for persons who are not a member of the Defence Force with a penalty units system in keeping with the criminal law system. It corrects several technical errors in expression that have impacted on discipline and which arose through previous amendments to the Defence Force Discipline Act. It removes from the DFDA obsolete provisions that refer to the discipline system operating prior to 1985. It provides for statutory recognition of the Director of Defence Counsel Services, their role and functions, and machinery provisions to support their administrative duties. It updates some terminology used in the Defence Act and applies the meaning of some words introduced in the act with their meaning in the Defence Force Discipline Act. It also extends the appointment of the current Chief Judge Advocate and full-time Judge Advocate for a further two years under the Military Justice (Interim Measures) Act (No. 1).

Importantly, none of these measures are apt to prove controversial in nature, either in or outside the defence environment. Instead, they might reasonably be considered as important but minor adjustments which in unison will support the further modernising of a current longstanding and already functioning military justice system.

This bill has reached its legislative destination after a long journey. The nature of this journey also reflects both careful consideration and wide consultation by not less than three governments, in one way or another, with the genesis of this activity taking place a decade ago. Indeed, a 2005 Senate report into the effectiveness of the military justice system recommended the creation of a military court under chapter III of the Constitution to deal with serious service offences in the Defence Force. In response to the report, the Howard government created a military court. For various reasons, a non-chapter-III court was created in 2007 and operated until 2009, when the High Court declared the court to be unconstitutional.

In response to the High Court's decision, the Rudd government reintroduced the previous superior tribunal system by the Military Justice (Interim Measures) Act (No. 1) 2009 as an interim measure until a military court could be established. Military court bills were introduced into the parliament in 2010 and 2012, but the bills lapsed on each occasion when parliament was prorogued. The interim system has continued to operate since. It is working satisfactorily and the fundamental basis for its continued operation is sound. But, because the system has remained 'interim', the statutory appointments of the Chief Judge Advocate and the full-time Judge Advocate have remained ad hoc and it has been necessary to legislate every two years to extend them. These appointments are due to expire on 21 September 2015, which means that further legislation is now required to extend them to around 30 September 2017. The roles of the Chief Judge Advocate and the full-time Judge Advocate are essential for the day-to-day functioning of the superior tribunal system, which would be compromised by any lack of continuity.

While the legislative journey to these reforms has been somewhat protracted, the important thing is that this bill is now in a position to make a raft of positive incremental improvements to the current defence justice system. The benefit of this bill is that it will act to make an existing defence justice system better still. No-one stands to lose by its passage and implementation. Rather, the reverse is true, with the direct and immediate beneficiaries being the members of the ADF themselves, through the enhanced clarity and certainty provided by this additional regulation and reform. In addition, I ask that the House note that passage of this bill will impose no financial burden on the Commonwealth. It therefore constitutes a much-sought-after rarity: benefit without cost or anticipated controversy, either now or in the future.

I conclude by noting that the Army elements of the ADF are as old as Australian Federation itself, with both Navy and Air Force just a little older still. Over the course of a century and more, our Defence Force, in all its forms and incarnations, has been continually refined, adapted and improved and, partly as a consequence of this, has never once let our nation down. Today's legislation is therefore but the last in a long series of bills, each designed in its own way to improve the professional performance of Australia's military, and the lives of the men and women who serve it and, through it, us so very well.

I have much pleasure in commending this bill to the House.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Alannah Mactiernan (Perth, Australian Labor Party) Share this | Link to this | Hansard source

And intelligent command, I would say.

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

Intelligent command is definitely the modern Australian ADF way—very, very focused on looking after their troops in every way possible. That command relationship is fundamentally based on respect, but obviously you do need the military process as well.

The High Court said in that case of Lane and Morrison:

… what the AMC is to do is to exercise the judicial power of the Commonwealth otherwise than in accordance with Ch III. The AMC cannot validly exercise the judicial power of the Commonwealth.

Consequent to the High Court decision, an interim superior tribunal was reintroduced in 2009. The Chief Judge Advocate and the full-time judge advocate appointments have been further extended in 2011 and 2013. It is necessary to again extend those appointments, and this bill extends them for a further two-year period. In order to continue the effective operation of the superior tribunal system, the appointment arrangements need to be preserved.

The amendments contained in this bill are necessary to ensure the continued effective operation of the military justice system, a system which is vital to the maintaining of an effective Defence Force. As the world recognises, our Defence Force is easily one of the most respected defence forces around the planet. Australia is proud of its Defence Force, both Defence Force personnel who are currently serving and those whom we are commemorating in the Anzac Day events, but I particularly note those who have previously served and taken off the uniform more recently. It is important that we ensure that the systems we have in place to protect and support our Defence Force service personnel are adequately empowered. I commend this bill to the House.

Darren Chester (Gippsland, National Party, Parliamentary Secretary to the Minister for Defence) Share this | Link to this | Hansard source

) ( ): I do not wish to delay the House greatly, but in summing up can I commend the member for Moreton for his contribution and also the members for Canberra and Bass for their thoughtful contributions to the Defence Legislation (Enhancement of Military Justice) Bill 2015, which will amend the legislation relating to the military justice system. The bill contains a number of modest but important amendments and reforms to several Defence acts. This bill clarifies the legal character and status of service convictions while providing that a service offence is an offence against the law of the Commonwealth. It also makes other minor amendments to modernise the military justice system.

Importantly the bill provides for the extension for another two years of the appointment of the current Chief Judge Advocate and the full-time Judge Advocate. Judge advocates are essential to the proper operation of the superior tribunals. The extension of these appointments will allow the superior tribunals to continue operating while consideration is given to further reforms to the military discipline system.

The amendments and reforms contained in this bill demonstrate once again this government's commitment to the security and the defence of Australia and its interests. Moreover, these amendments signal this government's commitment to modernising the military discipline system. I commend the bill to the House.

Question agreed to.

Bill read a second time.