Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Hansard source

I table a revised explanatory memorandum relating to the Defence Legislation Amendment Bill 2007 and I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

DEFENCE LEGISLATION AMENDMENT BILL 2007

In October 2005, in tabling the Government response to the 2005 Senate report into ‘The effectiveness of Australia’s military justice system’, the previous Minister for Defence, Senator the Honourable Robert Hill, commented that the Australian Defence Force does a truly magnificent job in defending this nation and its interests. He also added that the Government was committed to providing the best equipment and conditions of service to ensure that the ADF is a modern fighting force and that hand in hand with this, is a determination to provide a military justice system that is as effective and fair as possible.

The Government continues to express its admiration of Defence personnel undertaking important and often dangerous activities in Australia and on overseas operations.

The Government is also committed to reforming the military justice system to address the concerns of Defence personnel, the parliament and the community. This Bill is designed to make significant enhancements to the military justice system, which in turn will facilitate confidence in that system among those who it serves.

The changes are intended to provide for and balance the maintenance of effective discipline and the protection of individuals and the rights of Australian Defence Force members. This does not mean simply applying civilian standards and procedures to the Defence Force as this would not allow the ADF to perform its mission safely and effectively.

Because of the unique nature of warfare, the ADF applies a far greater level of regulation than that encountered in other forms of employment and demands behaviour which is consistent with its role as an armed force. Breaches of services discipline must be dealt with speedily and, sometimes, more severely than would be the case if a civilian engaged in such conduct. The military justice system needs to be one that can operate in Australia and overseas in peace and war. As the transition between peace and war can occur quickly, it is not practicable to have different systems with different standards applying in each of these circumstances.

The Government recognises the need for these additional constraints and standards, and that the military justice procedures that accompany them must be demonstrably objective, as independent as possible, timely, impartial and fair to ADF members, and they must be seen to be so by the Australian people.

In 2006, the first stage of significant reforms to the ADF discipline system was implemented through the establishment of a statutorily independent and transparent Australian Military Court. The court will come into effect on 1 October 2007. The second stage of these reforms makes further significant improvements to the military justice system, in particular through the modernisation and redesign of the summary discipline system.

Commanding officers in the ADF carry great responsibility, which may ultimately require them to use lethal force lawfully and with great discipline. The summary discipline system is the cornerstone of command authority in an armed force and enables the timely maintenance of discipline and morale.

The balance between discipline and the rights of individuals is the key to achieving the operational effectiveness and success that the nation expects of its armed forces, and of which the nation can be proud. It is this balance that produces a Defence Force that can wield lethal force while reflecting the values of its homeland and complying with its international obligations.

The ADF summary discipline system forms one part of the military discipline system which, taken as a whole, must provide the safeguards necessary to protect the interests of ADF members. Commanders use the summary discipline system on a daily basis. It is integral to their ability to lead the people for whom they are responsible in order to ensure their welfare and safety. It must operate quickly, be as simple as possible and it must be capable of proper, fair and correct application by commanding officers.

It is upon this premise that the Australian military justice system is based and the amendments proposed in this Bill have been drafted.

To ensure this fairness and rigour, the Bill will introduce a number of enhancements to the summary discipline system including—

• A right in all cases to appeal a summary authority conviction, order or punishment to a Military Judge of the Australian Military Court.  The Bill provides that a statutorily independent Military Judge of the Australian Military Court will have the discretion to deal with an appeal on its merits by way of a fresh trial or a ‘paper review’ of the evidence. Following the appeal process, should the punishment be altered, a Military Judge will be limited to imposing a punishment not greater than the maximum punishment available to the summary authority at the original trial.     
• The right to elect trial by a Military Judge of the Australian Military Court for all but a limited number of certain disciplinary offences, similar to the scheme available in the Canadian Forces summary discipline system. Dealing with these offences at the summary level will reinforce the maintenance of service discipline, while preserving the rights of individual members. Additional safeguards have been included for these offences, including limited punishments and a requirement for summary authorities to offer a right of election if, prior to making a finding of guilt, they determine that the more severe punishments that are available to them might apply. In addition, a convicted person will be further protected by the right to appeal I have just mentioned and a system of reviews of all summary trials.
• A revised evidence framework applicable to summary trials. The current evidence regime is overly complex and not easy to apply by persons without formal legal training. The importance of having a fair but simple and easily understood evidence framework, is recognised in the current British and Canadian Forces summary trial systems which do not use formal and technical rules of evidence. The Bill will make it clear that a summary authority will not be subject to the same formal rules of evidence that apply to the Australian Military Court. Nevertheless, the Bill will provide that evidentiary principles continue to apply at the summary level to ensure a fair trial and the protection of individual rights. This will mean that summary hearings will be more efficient and timely, while maintaining all the necessary safeguards for an accused person. Nothing in this proposal will affect a member’s appeal or election rights to the Australian Military Court from a summary trial.
• Automatic review by a ‘reviewing authority’ in respect of technical errors related to the awarding of punishments and orders. Further, in the case of certain more severe punishments, an additional safeguard will apply through the continuation of the requirement for them to be approved by a reviewing authority before they take effect. In exercising this power, a reviewing authority will be able to quash a punishment or revoke an order and substitute a less severe punishment or order within the trying authority’s jurisdiction—there will be no power to increase a punishment. The right to appeal to the Australian Military Court will then apply from the time the punishment is approved. The intention of the automatic review process is to provide additional safeguards for members by providing another avenue by which to correct inappropriately awarded punishments or orders that may not otherwise have been the subject of an appeal to the Australian Military Court.

A number of other significant improvements to the Military Justice system are included in the Bill.

Following a review of offences and punishments in the Defence Force Discipline Act, a number of proposed changes will be effected in the Bill, including:

• Reinforcing ADF anti-drug policies by enabling service tribunals to deal with offences in respect of a more contemporary range of illegal drugs and, for offences committed within Australia, allowing prosecutions up to the trafficable amount;
• Making it clear that a member is guilty of an offence if he or she ‘omits’ to perform an act which proves to be prejudicial to ADF discipline;
• Reinforcing the high standard of weapons safety required in an armed force by making the offences of ‘unauthorised discharge of a weapon’ and ‘negligent discharge of a weapon’ alternative offences;
• Improving the accuracy and fairness of sentencing by allowing the suspension in whole or part of a greater range of punishments under the DFDA;
• Ensuring that Defence Force Discipline (Consequences of Punishment) Rules apply to punishments imposed by discipline officers, so that in the interests of consistency and fairness the same consequences can be made to apply to all DFDA punishments whether imposed by a service tribunal or a discipline officer;
• Reducing the adverse and disproportionate impact of minor service offences on the civilian lives of Service personnel by providing that the status of a summary conviction is expressed to be for service purposes only; and
• Providing better administration of members sentenced to dismissal by allowing the AMC to order that the punishment of dismissal is effective on a day no later than 30 days after it has been imposed (rather than immediately as is currently the case).

These changes will make an immediate contribution to the rigour fairness and transparency of offences and punishments under the DFDA.

A number of other agreed recommendations from the 2001 Report of an Inquiry into Military Justice in the Australian Defence Force by Mr J.C.S Burchett QC will also be effected in the Bill. These include:

• Expanding the Discipline Officer scheme under Part IX of the DFDA to include junior officers up to and including the ranks of Lieutenant in the Navy, Captain in the Army and Flight Lieutenant in the Air Force (with limited punishments); and
• Removing the separate and more severe scale of punishments for Navy.

Additional proposals include—

• Expanding the jurisdiction of superior summary authorities to include ranks up to Rear Admiral in the Navy, Major General in the Army and Air Vice Marshal in the Air Force. This change will allow simple and minor offences committed by more senior officers in operational environments to be dealt with expeditiously at the summary level, rather than awaiting (the currently mandatory) trial by the Australian Military Court.
• Adding the automatic disqualification of a summary authority to try offences where it has been involved in the investigation of the service offence, the issuing of a warrant, or preferring the charge. The change will help reduce any perceptions about the possible bias of commanders and promote further confidence in the impartiality and fairness of summary proceedings.
• Removing the examining officer scheme from the DFDA. This change will remove an unnecessary and rarely used procedure.
• Introducing a new time limit of as soon as practicable within three months from the time the member is charged to the date of trial by summary authority. This will improve the timeliness of summary proceedings and prompt referrals to the Director of Military Prosecutions so that complex or serious matters are tried by the Australian Military Court as quickly as possible.
• Clarifying the powers of the Director of Military Prosecutions in respect of a charge preferred by the Director of Military Prosecutions to proceed directly to trial by the Australian Military Court to make it clear that he or she has the full range of options that are required by the position.
• Requiring a discipline officer to provide a report to his or her commanding officer. The intention of this amendment is to provide a safeguard through legislated oversight of the discipline officer scheme and provide statistical information to commanding officers. This will facilitate the maintenance of discipline and transparency of the discipline officer scheme.
• Providing a right for a member to request no personal appearance, subject to approval, in respect of a summary proceeding. The personal appearance of the accused will remain the norm, however, in exceptional circumstances where a summary authority of the correct rank is not readily available, and only where the accused intends to plead guilty, the member may apply to not personally appear at a summary proceeding and to have the matter heard in his or her absence, subject to the approval of the summary authority. The member will have the right to be represented at such a hearing.
• Statutorily recognising the new Provost Marshal Australian Defence Force. In accordance with the Government response to the Senate report, the Provost Marshal was appointed on 14 May 2006 to head the newly established ADF Investigative Service. It is intended to enable the Provost Marshal to refer a serious service offence to the Director of Military Prosecutions where he or she considers it appropriate to do so. Adoption of this provision will improve efficiency by streamlining military justice procedures and allowing more serious matters to be referred directly to the Director of Military Prosecutions and trial before the Australian Military Court thereby avoiding unnecessary summary proceedings.
• Strengthening the rights and duties of legal officers, in particular the exercise of their legal duties independently of command influence, by an amendment to the Defence Act. The purpose of this new section is to ensure that ADF legal officers are not subject to inappropriate command direction in the exercise of their professional capacity as ADF legal officers while still allowing an ADF legal officer who is superior in rank or appointment issuing technical directions to subordinate ADF legal officers.
• To give effect to a recommendation by the Senate Standing Committee on Foreign Affairs, Defence and Trade, in its report of October 2006, it is intended that the Director of Military Prosecutions be able to require that a trial of a class 3 offence is to be by a Military Judge alone, accompanied by a reduction in the maximum available punishment (six months imprisonment). This amendment reflects civilian criminal practice and overseas military systems which enable a prosecutor to require that a charge be dealt with by judge alone for a range of more minor offences. Similar to the current system of a Defence Force magistrate trial, these offences do not warrant a jury trial (with the associated administrative issues, expense and possible delays). This will avoid unnecessary jury trials, which will be of significant benefit to the ADF, given their potential to impact adversely upon ADF operations.
• Allowing for the Director of Military Prosecutions to be able to seek a determination from the Defence Force Discipline Appeal Tribunal on a point of law that arose in an Australian Military Court trial, at the conclusion of that trial. This will be for precedent purposes and will allow the law to be applied correctly in future cases.

These recommendations and initiatives, when implemented, will streamline and improve the ADF discipline system.

A modern and professional force deserves a modern and effective system of military justice. With the reforms contained in this Bill, the Government will provide a system that improves impartiality and fairness while striking the correct balance between ensuring effective discipline to allow the Australian Defence Force to operate safely and effectively, and protecting individuals and their rights.

I present the explanatory memorandum to this Bill.

CRIMES LEGISLATION AMENDMENT (CHILD SEX TOURISM OFFENCES AND RELATED MEASURES) BILL 2007

The Bill I present today is one that all Members of the Parliament should support. The aim of the Crimes Legislation Amendment (Child Sex Tourism Offences and Related Measures) Bill 2007 is to ensure that sexual crimes against children committed by Australians overseas are the subject of a comprehensive and up to date suite of Commonwealth offences. 

Child sex tourism, as a global industry, is recognised by the United Nations as ‘one of the worst contemporary forms of slavery’. Child sex tourism is a serious problem in many less developed countries. Many of these countries lack effective laws or, where laws are in place, the ability or willingness to enforce them.

Unfortunately, Australians play a large part in the child sex industry overseas, particularly in Asian and Pacific Island countries. In 1994, the Crimes Act 1914 was amended to introduce a regime of offences that target those people who engage in this type of conduct or help others to do so. Since their introduction, there have been more than 20 prosecutions against these provisions with approximately 15 convictions.

Child sex tourism offences

The existing child sex tourism offences in the Crimes Act cover a variety of conduct by Australian citizens or residents overseas, including engaging in sexual intercourse with a child, inducing a child to have sexual intercourse with a third person and participating in acts of indecency other than sexual intercourse with a child. Other behaviour captured includes acts done in or outside Australia with the intention of benefiting from, or encouraging, any of the above offences.

The Bill relocates the existing offences, currently located in Part IIIA of the Crimes Act, to chapter 8 of the Criminal Code. The provisions have been redrafted to reflect the approach taken in the Code and current drafting practices.

New measures contained in the Bill fill gaps in the current legislative regime and will enhance Australia’s existing child sex tourism regime by creating new grooming, procuring and preparatory offences. These offences are essentially preventative in nature. Their purpose is to give law enforcement agencies and prosecutors the mandate to take action before any child is harmed.

The new grooming and procuring offences are directed against people who are actively engaging with children in ways that will make them more likely to participate in sexual activity. Grooming can include a wide range of behaviour including conduct that encourages a child to believe they have romantic feelings for the adult or desensitising the child to the thought of engaging in sexual activity with the adult. Procuring a person to engage in sexual activity includes encouraging, enticing, recruiting or inducing (whether by threat, promises or otherwise) in relation to that activity. The procuring offences would apply, for example, where a person offered money to a child to engage in sexual acts or promised them some other form of benefit.

The Bill will also add new preparatory offences to the child sex tourism regime. The offences are intended to capture a wide range of preparatory conduct that occurs with the intention of preparing or planning to commit an offence involving sexual conduct with a child overseas. Such conduct could include activities such as arranging travel and making a hotel reservation in a well known child sex tourism destination, so long as this behaviour can be linked to an intention to commit an offence against the child sex tourism regime.

The Bill will also make changes to a number of penalties with the aim of ensuring consistency in penalties for like offences across the Criminal Code. As a result, offences involving:

• sexual intercourse with a child would carry a penalty of 17 years imprisonment
• sexual conduct with a child would carry a penalty of 15 years imprisonment
• procuring a child would carry a penalty of 15 years imprisonment, and
• grooming a child would carry a penalty of 12 years imprisonment.

Offences involving child pornography material or child abuse material overseas

The Bill introduces new offences making it illegal for Australian citizens and residents to deal with child pornography or child abuse material while overseas. Behaviour relating to child pornography or child abuse material in Australia is currently outlawed by a comprehensive regime of Commonwealth, State and Territory offences. The new offences will ensure that the same conduct by Australians overseas is also captured, and will complement the child sex tourism offences.

Under the new provisions, a person will be guilty of an offence if he or she possesses, controls, produces, distributes or obtains child pornography or child abuse material outside Australia. The person will be subject to a maximum penalty of 10 years imprisonment. This penalty is consistent with penalties in State and Territory offences relating to similar conduct in Australia.

In line with the child sex tourism provisions, these new offences are intended to fill the gap where a foreign country either has no specific laws dealing with this behaviour or is unable or unwilling to prosecute persons who engage in such behaviour. They will prevent Australian citizens or residents from travelling overseas to collect, produce or distribute child pornography or child abuse material in countries where such material is not illegal or where laws are not enforced. Individuals will no longer be able to avoid prosecution for such behaviour.

Under the proposed scheme, legitimate dealings in such material—for example for law enforcement purposes—would be protected.

Forfeiture

The Bill inserts new provisions to provide for the forfeiture of child pornography and child abuse material and any article containing such material, such as a computer or CD ROM, used in the commission of specified sexual offences against children. The provisions provide for the making of a forfeiture order by a court, either, automatically upon a finding of guilt for a Commonwealth sex offence or on application by a constable or prosecutor, where the court is satisfied on the balance of probabilities that such an offence had been committed. Once forfeited, the material or article becomes the property of the Commonwealth and can be destroyed.

Conclusion

The Australian Government is committed to protecting children from the threat of sexual abuse. The measures contained in the Bill will result in a strengthened child sex tourism regime and send a strong message to Australians contemplating such behaviour overseas. The measures also complement the Government’s current initiatives with respect to the protection of indigenous children in the Northern Territory and the Protection of Australian Families Online.

Ordered that further consideration of the second reading of these bills be adjourned to the first sitting day of the next period of sittings, in accordance with standing order 111.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.