Robert Ray (Victoria, Australian Labor Party) Share this | Hansard source

I present the eighth report of 2006 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 11 of 2006, dated 11 October 2006.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

In tabling the committee’s Alert Digest No. 11 of 2006, I would like to draw senators’ attention to the committee’s consideration of the Defence Legislation Amendment Bill 2006. In considering this bill, the committee noted the 2005 report of the Senate Foreign Affairs, Defence and Trade References Committee and, in particular, that committee’s concerns regarding the means through which the need for operational effectiveness in the somewhat unique military environment is balanced against the individual rights of defence members and defence civilians, within the military justice system. This bill responds to certain of the recommendations of that report, including the establishment of an Australian Military Court, the appointment of a chief military judge and two military judges and the provision for certain classes of offences to be heard by a military judge and jury.

The committee notes that, under this bill, the Australian Military Court has jurisdiction to try any charge against any defence member or defence civilian and that the classes of offences to be heard by a military judge and jury could potentially include the offences of treason, murder and manslaughter. Given this breadth of jurisdiction and the seriousness of the offences, the committee is concerned that the bill provides for a military jury to be comprised of six members and provides for the question of guilt to be determined on the basis of a two-thirds majority. The committee notes that this falls well short of the model followed in relation to juries in civilian courts, which generally require as a minimum the agreement of 10 out of 12 jurors and then only in specific circumstances and with the approval of the judge.

Unfortunately, the explanatory memorandum offers no justification for the proposed constitution of a military jury and the determination of questions by such a jury. Nor does it provide any indication of the extent to which consideration was given to the need to balance the rights of the individual against the particular needs of the military justice system. The committee has therefore raised its concerns with the minister and sought his advice.

Question agreed to.