Shayne Neumann (Blair, Australian Labor Party, Shadow Minister for Veterans' Affairs and Defence Personnel) Share this | Link to this | Hansard source

[by video link] I'm pleased to speak on the Defence Legislation (Discipline Reform) Bill 2021. At the outset, I say Labor will be supporting the legislation in the House today. The bill is aimed at reforming the system of military discipline for those who serve in the Australian Defence Force by improving the way discipline officers and summary authorities operate under the current legislation, the Defence Force Discipline Act 1982.

To defend Australia and our national interest, we must maintain a Defence Force that demonstrates high levels of professionalism, competence, commitment and discipline. On this, Labor agrees with the government. The women and men who join the Australian Defence Force are subject to military law, in addition to civilian law, which has its own discipline system and capacity to impose punishments and orders under the Defence Force Discipline Act. The act provides a comprehensive system of military discipline that must be trusted by the Australian people and, most importantly, by those who serve in the ADF. And it must be trusted to be applied fairly and effectively in all circumstances. The system of discipline administered by the ADF must encourage the men and women of the ADF to be accountable for their actions, and, importantly, to learn and grow from any mistakes made.

As the people in our Defence Force work and live with one another, and within teams, they have a reasonable expectation that any wrongdoing or breach of discipline will be dealt with quickly and fairly. Failure to do so would put the lives of others at risk, it erodes morale and it adversely impacts unit cohesion and fighting capability. Military service and the need to maintain discipline places constraints and responsibilities on the people of our Defence Force. These challenges are unique and experienced by few others of their fellow Australians. A separate system on military discipline is therefore essential to enable the Defence Force to deal with matters that relate directly to discipline, morale and operational capability.

It's in this context of a disciplined fighting force that, in some cases, breaches of military discipline by people in our Defence Force are dealt with more severely than would otherwise be the case if civilians engaged in similar conduct. The military discipline system operates in Australia and overseas in all times and in all circumstances. Enforcing military discipline is essential at all times, both in training for operations and during conflict in often difficult and dangerous circumstances. Those in the ADF are legally bound to follow up all lawful commands, including orders that involve considerable risk to their own lives and the lives of others, or may require them to use lethal force against an enemy.

The military discipline system administered under the Defence Force Discipline Act has three tiers, and it's important that I outline what they are. At the lowest level is the disciplinary infringement scheme, which enables minor breaches of discipline to be dealt with by the issuing of an infringement notice. A person can admit the breach of discipline—in other words, basically plead guilty—and be dealt with by a discipline officer, who may impose a low-level punishment, such as a fine or a reprimand. It has some similarities with the public understanding of what a very minor traffic offence would be: you accept the ticket and pay the fine, or you can choose to contest the matter in court. At least 80 per cent of all matters are dealt with in this way, with the person accepting and agreeing with the infringement and copping the penalty.

The second tier is the summary system. This comprises of subordinate summary authorities, commanding officers and superior summary authorities. These proceedings are adversarial in nature, with criminal law-like procedures in the disciplinary infringement scheme, and are not administered by legally trained personnel. It is this tier that is being collapsed and done away with by this bill. At the highest level are the superior tribunals. These comprise of Defence Force magistrates who strictly deal with court martials, which deal with more serious matters and apply criminal law proceedings—for example, if you were being charged with common assault.

As early as 1989, the Defence Force Discipline Legislation board of review, chaired by the Hon. Xavier Connor AO, QC, reviewed the operation of the newly enacted Defence Force Discipline Act on behalf of parliament. He observed: 'For the most part, service discipline, particularly as administered by summary authorities, has to do with matters which do not contain any element of criminality and which would not constitute an "offence" under civil law. Many of them are of quite a minor nature and probably in more than 90 per cent of these the facts are not in dispute.' These matters referred to by the review board range from actions such as those relating to operations against an enemy force, not attending duty on time, the unauthorised discharge of a weapon and having dirty boots on parade. Discipline lies at the heart of the service in any defence force. In 2005 a Senate committee commented on changes within the Australian Defence Force military discipline scheme and noted:

Military command is in many ways defined by obedience and conformity. Discipline is, along with leadership, a crucial underpinning of command.

In fact, it was the then Labor opposition that initiated this inquiry to deal with evidence from the ADF and their families about military justice systems.

The broader context of this bill is important, because the Australian Defence Force commanders have a duty of care to all people under their command whether at home in Australia or deployed overseas. And the priorities are not just about maintaining discipline; equally important is the welfare of those sailors, soldiers and aviators who serve in the ADF. By simplifying the discipline procedures, the time required to resolve commonly occurring minor breaches of military discipline could be significantly reduced. This would ease the stress on all those involved in any disciplinary action process.

There was a 2017 review, directed by the Chief of Defence Force, which found some aspects of the current system, which is being amended by this bill, were, indeed, overly complex and difficult to use. The review found in particular that summary discipline matters were often taking too long to resolve and adversely impacting the person accused of wrongdoing. Details in these matters were often complex, but there were delays in resolving breaches of military discipline which affected morale and the potential safety of other people, the review found. Many senior non-commissioned officers and junior officers were reluctant to use the scheme—that is, the adversarial scheme, the summary authority scheme. There was a lack of confidence in applying and understanding the complex court-like requirements of these adversarial summary proceedings. In consequence, the use of the summary discipline system was in constant and consistent decline. The review concluded the operation of the summary discipline system had proved problematic in recent conflicts, that the nature of modern warfare had changed since 1985 and that the Defence Force had been deployed in smaller Australian formations, often with independent units or embedded with allies frequently far from administrative support, which would allow the kind of adversarial-style summary authority systems to operate. The review found the complexities of the summary discipline system, particularly given the frequency, nature and length of overseas operations, often resulted in unacceptable delays in resolving or finalising breaches of military discipline. Given this feedback, Labor understands why the government has brought this on, but we can't understand why it's taken them four years if they think it's necessary.

Under the bill, we note, more serious offending would continue to be dealt with by a superior military tribunal or referred to civilian authorities as appropriate, and Labor thinks that is appropriate.

The bill reforms the discipline system in three ways, and it's important that I outline what they are. Schedule 1 will expand the operation of the highly regarded and effective disciplinary infringement scheme. The changes will allow a range of minor breaches of discipline to be dealt with more quickly and fairly with less formality within the disciplinary infringement scheme rather than more complex and adversarial service tribunal processes. Defence thinks this means that about 90 per cent of matters will be dealt with in this way. This will introduce a new senior discipline officer position, creating a new two-tiered discipline infringement scheme. We note the bill preserves the right of anyone facing a disciplinary infringement to make an informed decision whether to choose to have their matter dealt with under a disciplinary infringement scheme and appear before a discipline officer or a senior discipline officer in a non-adversarial process.

Schedule 2 would modernise the discipline system structure and reduce its complexity by removing the subordinate summary authority, and realigns the rank and the punishment jurisdiction of summary authorities, ensuring the logical progression in terms of the rank of the accused person, the seriousness of the breach of military discipline, the level of punishment that may be imposed and the seniority of the summary authority.

Schedule 3 further reforms the military discipline scheme and introduces some new service offences which modernise, and I think are good outcomes. These relate to cyberbullying, the receipt of a benefit or allowance and the failure to perform a duty or activity. Cyberbullying conduct is corrosive to discipline not just in military life but also in a civilian workplace. It can have an adverse impact on the mental wellbeing of its victims. The new cyberbullying service offence would send a very strong message to those in the ADF that the use of social media to cyberbully another person is unacceptable and will not be tolerated in the ADF. The intention of this new service offence is to enable Defence to protect victims of cyberbullying through early intervention and put a stop to the cyberbullying behaviour before it gets out of hand. It will protect people who choose to serve in the ADF.

Current safeguards for people accused of breaching military discipline will remain. Crucially, under the disciplinary infringement scheme, a person must choose to be dealt with by a discipline officer or a senior discipline officer. Labor acknowledges there are some additional safeguards in the bill, such as the requirement for any reasonable excuse to be considered before issuing a disciplinary infringement notice and the ability of a discipline officer or a senior discipline officer to dismiss an infringement if the officer considers the person has a reasonable excuse for committing the infringement. Punishments imposed by a senior discipline officer must be reviewed by a commanding officer—a review process. Labor thinks that's a good idea. On review, a commanding officer will have the power to confirm a punishment decision, substitute a punishment decision with a reduced punishment or no punishment or decide that the discipline infringement be dismissed with no punishment imposed.

It's not clear to us whether the changes are strictly necessary, and there has been little or no consultation to date with legal experts or the wider defence community. The bill was introduced four years after the review. The question is why. At the same time, it's important to ensure we're getting right the balance between administrative efficiency and operational effectiveness on the one hand and fairness, the preservation of legal rights and access to justice for ADF personnel on the other hand.

In particular, the minister has not provided a compelling explanation or concrete evidence of exactly how the amendments in the bill will enhance the ADF's operational effectiveness. In addition, Labor is concerned that, under the proposed changes, ADF members must choose to deal with an infringement scheme. The government expects, as I said, up to 90 per cent more matters will be dealt with this way. Further, the adversarial procedures, simplified rules of evidence and the Criminal Code 1995 provisions that apply to summary authority proceedings will not apply to the new disciplinary infringement scheme. Labor's view is that any changes should not remove rights and should be broadly consistent with what applies in the upper levels of military justice systems and civilian courts.

Ultimately, Labor wants to ensure that military justice competently balances the following twin objectives. First, it must ensure that the ADF's operational needs for effective and efficient discipline are met. Second, it must uphold objective and independent standards of justice that the public has confidence in, protect the rights of ADF personnel and ensure their treatment. These are the principles that would guide an Albanese Labor government, and we would continue to look at the process of reform to ensure military justice is fair and effective. To that end, Labor has referred this bill to the Senate Foreign Affairs, Defence and Trade Legislation Committee for inquiry to ensure proper scrutiny and stakeholder consultation and to help clarify the consequences of these substantial amendments. We are not confident that the government has consulted wisely or widely on this bill. We will come to a final decision when the legislation is brought into the Senate and once we see the outcome of the inquiry. I encourage everyone who may be interested in this bill to make a submission to the Senate inquiry.

In the meantime, we won't stand in the way of this bill in the House of Representatives. We won't oppose it. We believe that the vast majority of defence personnel serve and have served our country with distinction. We thank them for their service and we thank their families for giving their loved ones to the ADF to serve on behalf of our country and our community.

The ADF personnel deserve a justice system that treats them fairly. We ask a lot of them, and we expect that the justice system that deals with them is a fair one, does not derogate from their rights, and makes sure that operational efficiency and mission effectiveness still operate so that our ADF personnel can do all that we ask of them. In these circumstances, Labor will not oppose this bill in the House of Representatives, and we commend it to the chamber.

Pat Conaghan (Cowper, National Party) Share this | Link to this | Hansard source

I'm pleased to speak on the Defence Legislation Amendment (Discipline Reform) Bill. I would like to start by acknowledging all the current and former ADF personnel and thank you all for your service to this country. We would not have the freedoms we enjoy today without you and what you have done in the past.

I was quite surprised when I was reading this bill that some of these issues had not been dealt with previously, in particular the streamlining of the judicial process. I was pleased to see that things such as cyberbullying will be addressed in the future. One very pleasing by-product of this legislation—and my friend the member for Reid knows all about this—is improved mental health. As a former defence lawyer, I sometimes became a little bit immune to my clients' feelings, including how they reacted to being accused of a charge or an offence. Even the slightest offence, which was dealt with by way of infringement notice, sometimes affected those people very heavily. Quite often those people were professional people who were going through tough times, who had made bad decisions or who had been falsely accused. The weight on their shoulders for long periods of time whilst they waited for their matter to be dealt with through the judicial process affected their mental health and their way of life for many, many months and, at times, for more than two years.

In relation to this amendment, a similar process was undertaken by the New South Wales Police Force almost 20 years ago, with minor offences dealt with by infringement. It was much to the furore of all the criminal lawyers, who thought they were going to lose work because people would plead guilty to the minor infringements and not receive criminal convictions or minor pecuniary impositions. What it did was streamline the system; it unclogged that backlog in the judicial process at the Local Court, the District Court and the Supreme Court. It worked exceptionally well. What it also did was give people an opportunity to accept responsibility without the stress or the delay and the expense of a Local Court hearing or a criminal trial at the District Court.

I was a little bit surprised to see that it has taken the ADF this long to implement what has been running for at least 15 or 20 years throughout the police jurisdictions across Australia. And it is exactly what the ADF personnel deserve. The vast majority of ADF personnel are high-functio8ning professional people. When they're accused of something, whether they've done it or not, they deserve the ability to deal with it quickly, not to have it hanging over their head. I know, in certain circumstances in the past, some ADF personnel, because of the system, were on restricted duties for many, many months. Being on restricted duties, being unable to do what you trained for, weighs heavily on your mental health. If you're married, if you have a couple of kids, and you're on restricted duties, you don't receive that overtime or those bonuses that you might receive in a specialist squad, and so that transfers through that person accused to his or her family, to the children, to the way the house operates. So this amendment pleases me greatly. Knowing that that by-product—that by-product being the mental health of serving ADF personnel—is addressed is very, very pleasing.

The act as it currently stands is complex in some areas and doesn't always delineate between severe and comparatively less serious infringements. There are two unfortunate side effects, as I've indicated. One is that minor breaches are dealt with by comparatively harsh penalties, which take a significant time to adjudicate and hand down. The second is that such infringements are potentially overlooked from an official capacity. Many senior noncommissioned officers and junior officers have reported having little confidence in the use of the summary disciplinary system because of its complexity. Its use has been in consistent decline, from 1,743 summary trials in 2009 to just 923 in 2019. Now, either we have fewer offences occurring—which is possible, due to the scrutiny—or those offences weren't being effectively dealt with by official means.

It's critical that breaches of discipline are resolved quickly, fairly and proportionately not only to fortify good order and fighting capability but also to maintain overall morale and reduce the adverse effects that delays can have on mental health. I've referred to the fact that the nervous wait to hear a verdict can sometimes be worse than the punishment itself, and I've certainly seen that over and over in the past 30 years. We have to have appropriate disciplinary action to ensure that we maintain an operationally capable Defence Force with the highest level of competence. And we do—we do have the highest level of competence in the ADF, and I'm sure, if you asked anybody in the street, they would tell you that they have high confidence in what the ADF do.

In order to remove these unnecessary administrative delays, the updated act will now have these three tiers, with progressively greater powers of punishment depending on the nature of the infringement. These tiers will allow authorities to identify the appropriate level of punishment more easily and effectively. Firstly, at the lowest level, is the disciplinary infringement scheme. This scheme enables minor breaches of discipline to be dealt with by the issuing of an infringement notice. Importantly, a disciplinary officer may impose a low-level punishment, such as a fine, extra duties, stoppage of leave or a reprimand, rather than a senior tribunal having to deal with it And that's one of the major points. You can imagine somebody who has made a mistake, who has done the wrong thing, being willing to effectively plead guilty just to get it out of the way, just to know 'I'm going to lose a week's leave or I'm going to be restricted in what I can do, but I'd rather it not be hanging over my head like the sword of Damocles', and deal with it appropriately.

The second tier is the summary system, which is presided over by summary authorities. It's like the adversarial court system. Many minor infringements currently fall into this tier unnecessarily. I referred to the system in the New South Wales Police, where, by implementing that infringement process, the court effectively cleared a backlog of 18 months to two years. We heard submissions today that over 90 per cent of people who have received infringement notices effectively plead guilty to them, pay the fine or take the punishment.

Of course, at the highest level, which must remain, superior tribunals comprising Defence Force magistrates, restricted and general courts martial will deal with serious matters which might result in dismissal from the ADF and punishment of imprisonment or reduction in rank. I do note that there are other offences that fall within the criminal jurisdiction; should a criminal offence take place, it is dealt with within the state or territory jurisdiction under that criminal jurisdiction in the district court or the Supreme Court.

It's good to note that, with times changing, the changes will also deal with cyberbullying. Just because the men and women of the ADF are perceived to be rough, tough and able to handle anything, it doesn't mean that they're not also subject to cyberbullying. Unfortunately, in my opinion, social media is a cesspool. I don't believe that our society is better off with social media. We've seen the horrible, terrible circumstances of people who have taken their own lives because of cyberbullying. Sadly, the ADF—just like every other workplace—is no different. As MPs, we're in constant contact with our constituents via our own social media pages. We all know, on a daily basis, some of the comments in there that I'm sure that person—that keyboard warrior—wouldn't say to our faces.

Whilst social media can be used as a good force in many ways, it also has that effect of harming mental health. It's pervasive most of the time, and you can't simply leave the room. So it's pleasing to see that this reform will enable authorities to hold to account those who would use social media for negative purposes against a colleague. Critically, it will allow early intervention; it's well documented that the longer these behaviours go on or persist that the more destructive they become in the future.

So it's pleasing that these amendments have been made; I'm confident that they will make the ADF, the judicial process and simply the environment in the ADF a much better place. Making these small and, in some circumstances, well-overdue changes will definitely make it less administrative and will free up the system. There will be faster resolutions, and the changes will mean more certainty for offenders, resulting in less strain on their mental health—which is critically important, particularly in the ADF, where they are under enough stress as it is. And the bill will introduce reforms to the use of social media which, sadly, is an influence that we must look at managing specifically in terms of its short- and long-term effects and its misuse, which can be inflicted not only on individuals but on a serving unit.

Again, I'm very pleased to commend these changes in the Defence Legislation Amendment (Discipline Reform) Bill 2021 to the House.

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

[by video link] I rise to join the shadow minister in cautiously welcoming the government's Defence Legislation Amendment (Discipline Reform) Bill 2021. In doing so, I note the bill is aimed at reforming the system of military discipline for those who serve in our defence forces by changing the way discipline officers and summary authorities operate under the Defence Force Discipline Act. An important background to this bill is the 2017 review that found that aspects of the current system were overly complicated and difficult to apply in the context of today's Defence Force. Those familiar with that review will know it found, among other things, that summary discipline matters were taking way too long to resolve and were potentially having adverse impacts on the accused. Anyone who has served our country in uniform will know the big impact that those delays in resolving breaches of discipline have on morale and potentially on the safety of all concerned. It's certainly the case where people live, work and operate in close-knit communities in very stressful situations.

Clearly the system has not been serving our defence personnel as well as it should, with many senior NCOs and junior officers simply being reluctant to use it. As a result, the use of summary discipline systems has been in pretty consistent decline over many years. This is particularly in the case of recent conflicts. Our defence personnel are now being deployed in smaller formations, often either as independent units or embedded with our allies, and more often than not are far away from administrative support. It's a far cry from when legislation was made law back in 1985. Taking those operational changes into account, it is important these reforms provide commanders and the men and women who serve under their command with a system of discipline that allows for minor breaches of discipline to be dealt with quickly, fairly and properly. It's also important to note that more serious offending should absolutely continue to be dealt with by a superior military tribunal or be referred to civilian authorities as appropriate.

In terms of the bill itself, we know it is intended to reform the system in significant ways. It will expand on the operation of the highly regarded and effective disciplinary infringement scheme. It will allow a greater range of minor breaches of military discipline to be dealt with quickly, fairly and in less formality within the infringement scheme rather than by the more complex adversarial service tribunal process. When we talk about infractions, we're talking minor things—as the shadow minister rightly pointed out, things like dirty boots that don't require the need to have a full process on them. They should be handled properly, efficiently and quickly, and we should make sure the powers that be have all the tools they need to make the action swiftly and not cause more headaches and concerns for both the accused and the unit they're in. This bill will introduce a new senior discipline officer position, creating, in a sense, a two-tier disciplinary infringement scheme.

Labor welcomes the additional safeguards included in the bill to ensure the scheme continues to operate fairly. Schedule 2 proposes to modernise the discipline system structure and reduces the complexity by removing the subordinate summary authority. Schedule 3 would further reform the military discipline system by introducing several new service offences. Importantly, these relate to cyberbullying, receipt of a benefit allowance and failure to perform a duty or activity. As we all know, and as the previous speaker mentioned, cyberbullying conduct is corrosive to discipline and can have severely adverse effects on the mental wellbeing of its victims. We know that back in 1985 there was no cyberbullying; it had never been heard of! But what we see today is a constant barrage of keyboard warriors who attack anonymously, hide behind bots and do these things that absolutely impact on people. It doesn't matter what walk of life you're from; we see this all the time.

It's so important the men and women of our Defence Force who are doing the right thing are protected and looked after. I think the intention of this new offence enables Defence to protect victims of cyberbullying through early intervention and to put a stop to cyberbullying behaviour before it gets out of hand. The work I used to do with Bully Zero gave me absolute insight into what can happen with cyberbullying and the absolute dire consequences from that. The more that we can do to stop this, the better. We need to ensure that our defence personnel are given the protections they deserve and the security they deserve for the work they do for us. Importantly, current safeguards for persons accused of breaching military discipline rules still remain in this bill.

So, looking at the bill as a whole, these proposed changes would appear to have a positive effect on improving the administration of discipline for all those who serve our country. But it is not clear whether these changes are strictly necessary. As we understand it, there has been little consultation to date. I think it's essential that we get the balance right between administrative efficiency on the one hand and fairness and the preservation of legal rights and access to justice for the members of our forces on the other. We need to ensure that people on the ground have a say and that there are no unintended consequences here.

Quite often throughout this term and the last term of parliament we have seen that many bills have had to come back and be amended because of an unintended consequence. I think that is why it is important that we speak to defence personnel directly and get their feedback and their views. That's why Labor instigated a referral of the bill to the Foreign Affairs, Defence and Trade Legislation Committee for a short inquiry. It's not to hold the bill up but to ensure there is proper scrutiny and proper stakeholder consultation.

As the shadow minister said, Labor will not oppose the bill in the House, but we will moving a second reading amendment condemning the government's failures in defence and veterans affairs, and there are so many. But we will reserve our position on the bill until the Senate inquiry has reported back. It's only going to be a short time, but it can make a massive fundamental difference to the way this bill is presented and the way it delivers for our Defence Force personnel. I think the government should be supporting the idea of going out and consulting with people. Rather than run a top-down approach, they should actually start to listen to the people on the ground. With those few words, I wish the bill a speedy passage. I thank the House for its time.

Andrew Wallace (Fisher, Liberal Party) Share this | Link to this | Hansard source

Some of us are better at following orders than others. I was 19 years of age when I was given the DCM, the 'don't come Monday', when I was training to be a priest, because they didn't think that I'd be able to fulfil my vows of poverty, chastity and obedience. They were probably right, I guess, at the end of the day.

In the civilian world, even in this place, not to follow rules can sometimes be an advantage. It can stimulate innovation, support independence and encourage enterprise. But, in a military setting, discipline and obedience are absolutely critical. They can be matters of life and death. To stay safe and do their job, every soldier, sailor and aviator has to know that their comrades around them will do exactly what they're required to every time. Without that knowledge and that certainty, coordinated action and resolve can break down, mistakes can be made, and people can be placed in serious danger. There is no space for rugged individualism in an effective combat unit.

In the ADF, our serving men and women maintain order through a carefully structured disciplinary system which, since the 1980s, has consisted of three parts. The courts martial deal with the most serious offences, with legally trained officers acting as arbiters of fact and law. The summary authority system, with its three tiers, tackles less serious service offences following non-judicial but courtlike procedures. And the disciplinary infringement system maintains day-to-day order with respect to minor infringements whilst imposing modest punishments.

I'm privileged in my roles in this place to have the opportunity to hear from many ADF personnel firsthand. As chair of the Defence Subcommittee of the Joint Standing Committee on Foreign Affairs, Defence and Trade; chair of the Coalition Policy Committee on Defence and Veterans Affairs; and an active member of the ADF Parliamentary Program, I get the privilege of speaking to soldiers, sailors and aviators on a regular basis. In this place, we talk about reforms and efficiencies and enhancing effectiveness. But many of our service men and women say it a little more plainly. When it comes to the military discipline system, ADF members say that the disciplinary infringement scheme is great and they say that the summary authority system as it stands is useless. Nobody likes it, so, guess what? They don't use it. I'm told that there has been more than a halving of cases coming before this tier of the discipline system since 2008. The Royal Australian Air Force, I understand, has largely avoided the process altogether. Members of the RAAF would probably have you believe that's because they never do anything wrong, but that's probably unlikely.

When something doesn't work, our service men and women find a way. In this case they are voting with their feet and pushing matters to higher or lower authorities, depending on the seriousness of the case. Put simply, the summary authority system operates on court-like procedures, but it is conducted by ordinary officers without legal training and without much in the way of legal support. Its decisions are constantly subject to appeal to higher authorities. Officers tell me that, understandably, those operating in this court therefore approach it without much confidence and with an abundance of caution. There are reports of officers holding dress rehearsals of court proceedings to ensure no errors are made in procedure, while others read from the procedure manuals at great length during hearings to ensure every detail is present and correct. All of this is to avoid undermining the authority of officers and taking up even more time with a lengthy review process. Where a case has significant implications for a unit's discipline, or can involve relatively serious consequences for the service man or woman involved, then such an overabundance of caution is necessary. However, for relatively minor matters of discipline, it is too complex, too time-consuming and too risky for all parties.

There is, however, a much faster, simpler and more efficient system for less serious breaches of discipline. The disciplinary infringement system, managed by discipline officers and trusted and preferred by defence members, is at every level. It doesn't involve court-like procedures. However, it does give service men and women the opportunity to be heard and imposes only fines, losses of privileges and reprimands. Cases can be dealt with in just a matter of days. As it stands, this system deals with matters such as short absences from duty, falling asleep on guard or failing to comply with a general order. ADF members tell me that it could accomplish so much more.

The bill before the House abolishes the complex and distrusted subordinate summary authority, and expands and improves the disciplinary infringement system to give ADF members the option of being dealt with by it for an expanded range of matters. The bill introduces the role of senior discipline officer and provides that these senior discipline officers can deal with more serious matters, such as longer absences without leave, insubordinate or insulting language, causing a disturbance, being drunk on duty, unauthorised use of military vehicles or the negligent discharge of a weapon. These are doubtless more serious breaches of discipline, but they do not require a full court process to be resolved, nor as isolated cases do they require imprisonment or discharge to follow. As such, with the proper oversight of the unit's commanding officer, these matters can and should be resolved quickly and simply. This bill will formalise the process for allowing that to take place. However, a disciplinary system needs not only efficiency and effectiveness but also to enforce a set of standards which keep pace with changes in society.

Like any other part of our nation, the military is not immune to the increasing and shifting influence of technology in our lives. Like young people across our society, serving members of our ADF use social media to communicate with each other and with friends and family outside the services. Like so many others, they're exposed to not only the many benefits of social media but also, in all too many cases, the dangers that it can bring. Although the vast majority of our serving men and women are absolutely upstanding professionals, under the pressures of an intense and sometimes dangerous environment, a small minority choose to abuse, bully or harass others online. We've seen evidence of such behaviour in recent years through the alleged involvement of serving ADF personnel in online forums such as the Instagram page State Sanctioned Violence in 2020 or the Facebook group SNAFU in 2017, which have not only glorified criminal acts but also posted abusive and violent material about women and minority groups. Such behaviour is fundamentally at odds with the values of the ADF, and it is deadly to the morale, discipline and order of a fighting unit.

Worse, the consequences of bullying and abuse can be devastating for the individuals who experience it. In the inevitably close quarters of a ship or a military base, there can sometimes be no escape. Former soldier and paratrooper Anna Maria Lang has spoken out recently about her post-traumatic stress disorder and her attempt to take her own life. She ascribes these experiences not to the pressures of service themselves but to the sexual discrimination and bullying that she experienced from some of her fellow soldiers. The availability and anonymity of social media makes abuse like this not only easier but more difficult to trace. However, where it can be tracked down and a culprit identified, the ADF must have access to serious sanctions to stamp it out and to hold those who perpetrate it to account.

This bill introduces two new service offences related to cyberbullying. One makes it a service offence to use social media or another online service in a way that is offensive, threatening or intimidating, or to harass or humiliate another. In order to ensure that harm is minimised, it creates a further service offence of failing to comply with an order to remove material that has been deemed to be cyberbullying by a service tribunal. By creating these offences, this bill allows this conduct to be dealt with by the summary authority or court martial system, with a maximum sentence of two years imprisonment for either offence. Since 2015, this government has ensured that, in the civilian world, those who have experienced cyberbullying have a channel, the eSafety Commissioner, to help them get offending material removed and the perpetrators held to account. With this bill, we're extending some of the same protections to our serving men and women and helping to show the seriousness with which the ADF treats this issue.

At a time when Australia faces an ever more complex and threatening international environment, it's important to remember what it is that ensures Australia's national defence. US general and founding father George Washington said: 'Discipline is the soul of an army. It makes small numbers formidable; procures success to the weak and esteem to all.' Whilst small in number, the ADF is one of the most disciplined and professional armed forces in the world, and I've had the great privilege of seeing many of these men and women serving in many different parts of this world. In a region where potential threats to our country could come from much larger nations with greater material resources to command, it is discipline, our material and the professionalism of our service men and women that we will depend on for our national security. By streamlining the ADF's disciplinary processes and bringing them up to date with the world around us, this bill will contribute to maintaining our Defence Force's soul and keeping it a formidable opponent to be reckoned with.

I want to close by acknowledging the work done by the new minister for veterans and defence personnel and his staff in bringing this bill and the way that he's consulted the backbench committee, which I chair. I want to acknowledge the work of the previous minister, the member for Gippsland, and his incredibly hardworking staff as well. Both ministers have done a lot of work on this bill.

This bill has been a long time in the making. I have spoken with the senior officers who have guided and steered the preparation of this bill. If I remember correctly, this bill has been about eight years in the making. It has been somewhat complex, and a lot of work has gone into it.

I want to acknowledge the work of Senator McLachlan, who is an ex-colonel of the Australian Army. He was a legal officer, and we had the privilege of being able to get the wisdom of his experience in reviewing this bill. So I'm a little concerned to hear some members opposite say that this is a bill that should go off to the Senate for further review. This bill has been a long time in the making. There's been such a considerable amount of work that's been done on this bill not just by the ministers but by the ADF themselves, and it has the support of the government. I urge all members in this place to support the bill.

Luke Gosling (Solomon, Australian Labor Party) Share this | Link to this | Hansard source

During question time we heard about the deaths of two soldiers near Townsville, so I want to send my condolences to those soldiers' families and their mates, because they will obviously be doing it very tough at the moment. This bill, the Defence Legislation Amendment (Discipline Reform) Bill 2021, is about our ADF. Whether it be on operations, as we have seen in the last week or so, or during training, dangerous situations can occur. We try and manage that risk to the best of our abilities, but incidents like this can happen. So we send our condolences.

We also heard honourable members speak earlier today on the centenary of the ANF, the Australian national flag, and it's something that all servicepeople cherish. It's worn on your uniform. Those members of our ADF that have been in harm's way recently proudly wear our Australian national flag. This bill is about discipline, and I can remember, when I was going through training, being disciplined if the Australian national flag hit the ground. You could never do that. It was a big no-no. Even today, as a local federal member, when I go to a school and give the kids a flag, I'm always a bit nervous when they are pulling it out of that bag and trying to teach them the importance of not letting that flag touch the ground.

As an aside, it's been expressed to me by several veterans how disappointed they are that our Prime Minister sees the need to wear an Australian national flag on his face as a COVID mask. I call on all members opposite, particularly those with defence experience, to go and have a chat with the Prime Minister. Why is it that he sees the need to use our Australian national flag as a prop on his face during COVID? Use one of the same ones that we all use, Prime Minister, because it doesn't impress anyone out there, particularly not those who wear that ANF proudly. But I digress.

Police Remembrance Day was spoken about earlier, and I don't think the relationship between the ADF and the police has ever been closer than it is at the moment. They're working together on their various tasks very closely. They both sign up to serve and protect. That is the calibre of these men and women who join our forces. I want to associate myself with a speech by the member for Gorton in relation to a previous bill, where he talked about the service of our ADF members that we're so proud of in the last little while in Afghanistan but also more broadly. I join him in associating myself with those sentiments.

Now to this bill. On 12 August 2021 the Minister for Defence Personnel and Minister for Veterans' Affairs introduced the Defence Legislation Amendment (Discipline Reform) Bill 2021 to progress changes to Defence discipline. There are a number of reasons that that bill was drafted, and now we debate it. I noticed that the last speaker was concerned that those on this side had suggested that perhaps this bill could go off to a committee for further scrutiny, because it had already been considered for eight years. But it's going to be considered and there'll be a report by that Senate committee in October. I think we owe it to our Defence Force members to have that little bit of extra scrutiny to make sure we've got the balance right between rights and streamlining administrative processes. Don't those opposite think that that short period of time, after eight years, is worthwhile? We want to make sure we get it right, don't we?

The shadow minister for veterans' affairs and defence personnel, the member for Blair, set out the reasons behind this bill and how we got to where we are, so I won't repeat his extremely well-articulated position. However, I will make a couple of comments. Currently, about 80 per cent of disciplinary matters in the military involve relatively minor infringements which could in fact be dealt with more quickly, easily and fairly under the changes. We agree that that's the case. For example, being absent from duty could be dealt with in as little as two or three days with a reprimand or a fine of a day's pay. More serious breaches, such as insubordination or insubordinate conduct, would receive a more severe reprimand or a larger fine but could be managed within days.

I've been guilty of both of those charges in my service to our nation. There was one evening I remember right here in Canberra, when I was going through training. I don't like to say that it was totally my fault, but we had a curfew of midnight and, somewhere between the Private Bin and Mooseheads, I lost track of time. A couple of comrades and I were late back to the Australian Defence Force Academy, and I was reprimanded for that. I wouldn't say it was a serious breach. Nevertheless, I think we've got to be realistic about minimising the amount of time that is wasted with these minor breaches whilst we still continue to give serious breaches the time that is required to get a fair and just outcome.

This legislation is mostly good. Get it done, get the disciplinary action over and done with. Don't let it linger. Don't have ADF members overly stressed about this. We want them to know the seriousness, whatever that may be. But we also want to be able to crack on, because there are important operational reasons for us having everyone good to go.

As I said, it's also important to ensure that a balance is struck between those administrative efficiencies and the preservation of ADF members' rights and access to justice. Therefore I do believe it was very prudent to refer the bill to the Foreign Affairs, Defence and Trade Legislation Committee for a short inquiry. I would like to think that those opposite, having taken eight years, wouldn't mind a little bit of parliamentary scrutiny. We don't want any unintended consequences at this point, so having a report from that committee by 14 October is in order. It's not too far away at all.

Justice must be fair and effective. We must ensure that the ADF upholds the highest standards of behaviour, because they are ambassadors for our nation. Members of the ADF are incredibly professional as a rule, but previous members have highlighted some instances where behaviour has not met the standard required, and disciplinary action needs to be taken. But members of the ADF, like any Australians, are only human, so when they err, let's treat them fairly. That's the least that we owe them.

Vince Connelly (Stirling, Liberal Party) Share this | Link to this | Hansard source

I acknowledge the member for Solomon and other veterans in this place. There has been some healthy discussion about this proposed legislation. As did the member for Solomon, I confess to having been at the receiving end of discipline during my military service. Thankfully, it was nothing serious, but it does highlight the point, and the very real fact as well, that there is a great deal of complexity at that middle tier of the disciplinary system. It's referred to as the subordinate summary authority, and it's incredibly complex. There has been some really well-informed debate and a summary of this proposed legislation, but I'll just give a little bit of a sense of what that complexity actually looks like.

Basically, even whilst serving as an officer cadet at the very start of my career at a military university—and the member for Solomon touched on this as well—I was taught about the Defence Force Discipline Act. We were given it in volumes 1 and 2. They were huge volumes. If you needed a computer screen stand, they were ideal. If you had to reach something a bit high up, they were also good to stand on. But, sadly, we also had to actually understand quite a bit of the information contained in the Defence Force Discipline Act.

Not only that, we had to perform the duties of prosecution and defence in a way that is very similar to and, of course, mirrored an actual court of law. So, even whilst we were undertaking military studies, physical training, drill, military history and the many other things which are required in training to become a junior officer, we were trained in a quasi-judicial process. For example, when somebody was the subject of discipline, we had to learn and practise to be a prosecuting officer. In this sense, we had to gather evidence and make sure that it was all appropriately registered ahead of the trial date. Then we had to go into a courtlike proceeding and act as if we were a prosecuting officer. At the same time, we also had to learn the skills of being a defending officer. Here our role was on the flip side, defending the case against the accused, gathering evidence, interrogating witnesses and, if the accused was found to be guilty, offering a plea in mitigation. This was the circumstance where we would request that a situation be taken into account and a sentence be more lenient.

Some of these quite full-on court processes were conducted for what were quite minor infringements, things like staying out a bit too late if you were having a good time with your friends or fraternising in the accommodation lines. These are things which really did not require or justify that level of detailed preparation and conduct.

Further in my career, as I progressed to being a middle-ranking officer—a major—I was then required to actually fill the role of the subordinate summary authority. I heard the member for Fisher, in his earlier contribution, mention that he had even heard reports of full mock trials being conducted before an accused is actually brought in. I can confirm for the member for Fisher, and others who may be interested, that that is exactly what we used to do. That's because the level of complexity was so high that if we did get something wrong and it was a breach of proper process then the entire thing could all be for naught. It would either have to be re-run or, if there had been a significant breach of process, the whole thing may have been thrown out when it eventually got to a legal officer for review.

On that point of legal officers: we have legal officers, as we do education providers, pilots and many other specialist trades brought into Defence to provide their expertise so that we can let war fighters do what they need to do, which is to train, to fight and to win wars. This really is why I'm so supportive of this bill—it enables Defence to focus on its core business, which is getting prepared, training for operations and reinforcing all of the knowledge, skills and attitudes that need to be done at platoon, company and battle group levels and, of course, above that.

This bill will introduce changes which maximise what is working well—in particular, for these disciplinary infringements. Typically, these have been applied at the senior NCO level—something like a warrant officer being able to liaise with somebody in their unit who has allegedly conducted a minor infringement and, if there is no objection, applying a disciplinary infringement which is basic in nature but which obviously matches, in many cases, the offence itself. So it's very sensible in that regard. It will result in a system that will be far easier to use and it will reduce unnecessary delays. This is important, because if somebody has a pending infringement hanging over them for months or, potentially, longer then it can impact, certainly, their morale and that of the rest of the unit, and their ability to attend promotional courses and other training activities as well. So it's really important that we get in and deal with infringements quickly when they occur.

I'm sure that for those of us who have been out there in the world of business, or even in the Public Service, there are systems in place where feedback is provided and correctional courses of action taken. Of course that feedback needs to be timely to correct behaviour, if it has strayed off course, and to ensure that we maintain good behaviour and discipline in any organisation. We've heard from some other contributors—and I absolutely back them on this point—that discipline is an absolutely critical component of defence. In fact, when I was very new in my career I was surprised to learn that discipline is referred to as a critical element of morale. One might think that soldiers, sailors and air men and women, being let free to roam about and not well supervised, might be ideal. But the reality is that it actually breaks down unit cohesion and it breaks down the trust that is so essential, as it underpins the effectiveness of any military fighting force.

That's why it's important that we introduce these reforms. As did the member for Fisher, I commend the minister for his handling of this legislation and his engagement with the committee—the coalition backbench committee on defence and veterans. It's been really pleasing to see this brought forward in such a professional manner. As has been commented upon by others during this debate, we can see that the reform measures will result in a military discipline system which is a great deal easier to use and to understand. This will reduce the delays that I spoke about earlier and be much fairer to all of those involved. It will allow commanders at all levels to more simply and quickly address poor behaviour, create the opportunity for early intervention and enable our Defence Force and personnel to keep providing their valuable service.