Marise Payne (NSW, Liberal Party, Shadow Parliamentary Secretary for Foreign Affairs) Share this | Hansard source

The opposition, as we have indicated in the House of Representatives, supports the Defence Legislation Amendment Bill 2008. It is a bill which introduces further reforms to the Australian Defence Force discipline system—in this particular case, largely the summary discipline system. It amends the Defence Act 1903, the Defence Force Discipline Act 1982 (DFDA) and the Defence Force Discipline Appeals Act 1955 (DFDAA) to simplify and redesign summary discipline procedure. It represents one of the most wide-ranging reforms to the ADF summary discipline system since the introduction of the DFDA. It also provides for further changes which build on the very solid reforms of the Howard government in the Defence Legislation Amendment Act 2006. In fact, these amendments were first introduced last year by the coalition government, but the 2007 amendment bill lapsed when parliament was prorogued.

At the outset, can I note the work of the Senate Foreign Affairs, Defence and Trade Committee—which I had the honour to chair for some period—which examined the amendments proposed by this bill when they were first introduced last year. In fact, that committee has been involved in the examination of the military justice system since its 2005 report entitled Report on the effectiveness of Australia’s military justice system. The then government’s response to that report is further reflected in the amendments in this bill.

There is, broadly speaking, bipartisan support and strong cooperation on military justice reforms. The coalition remains committed to ensuring these reforms are adopted and that they operate as intended, consistent with our response in government to the recommendations of the Senate committee’s 2005 report. That Senate committee report included 40 recommendations, to which the then Minister for Defence, Minister Hill, responded in October 2005, agreeing to 30 of those recommendations in part or in principle. I want to acknowledge my colleagues Senator Sandy Macdonald, Senator David Johnston and then, progressively, Senator Russell Trood, who were strong contributors to the military justice inquiry process of the Senate committee and have consistently followed the implementation of the recommendations—indeed, as I have myself.

This bill, which is largely consistent with that which was proposed by the former government, endeavours to ensure an appropriate balance between the maintenance of discipline and the protection of rights of Australian Defence Force members. Its key amendments include enhancing the summary procedures by introducing a number of safeguards, including an automatic right of appeal for summary trials to the new Australian Military Court, yet still enabling commanders to maintain effective discipline while recognising the need for timeliness and fairness to protect the rights of individuals.

The Defence Legislation Amendment Act 2006 established the Australian Military Court to replace a system of effectively ad hoc trials by courts martial and Defence Force magistrates. Prior to that reform, an ADF member had no real mechanism to appeal to a court martial or Defence Force magistrate with regard to a conviction or punishment imposed by a summary authority. So this bill enacts one of the recommendations of the 2005 Senate report by introducing that right of appeal from summary authority to a military judge of the Australian Military Court.

It was contended in the 2005 report that service personnel should have this right for charges that would potentially lead to a criminal record or affect them post military service. Another key amendment is the right to elect a trial by a military judge of the AMC for most disciplinary offences. Again, this amendment stems from the 2005 report and is similar in ways to the Canadian Armed Forces summary discipline system, which the committee examined in its consideration of these matters.

There are further amendments which relate to the simplified rules of evidence which are, indeed, quite significant. The evidence regime which is currently applicable to summary trials is regarded by Defence as overly complex and not easily applicable by persons without formal legal training. The bill intends to 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 but must not depart from the fundamental principles underpinning the rules of evidence. This new evidentiary framework is based on the system which has been in use for some time by the Canadian armed forces. I will come back to that point. Further amendments include a form of review for technical errors related to the awarding of punishments and orders, simplification of offences and punishments, and altered jurisdictions of superior summary authorities and discipline officers.

I well recall that when the 2007 bill was examined by the Senate Standing Committee on Foreign Affairs, Defence and Trade, it was welcomed and endorsed by the Army, the Navy and the Royal Australian Air Force as well as by the then Acting Chief of the Defence Force. That is not surprising—they brought the bill forward. Notwithstanding that, the coalition does stress the need to ensure that ADF personnel who find themselves within the system of summary discipline within the ADF are not adversely affected by these reforms. As a Senate committee, we rely extensively on evidence provided to us, not just by the proposers of legislation but also by those with special expertise or an interest in the particular area. In that regard, I particularly want to acknowledge and thank Mr Paul Willee QC, the chairman of the Military Justice System Working Group of the Law Council of Australia, for the evidence that he provided to the committee.

In offering our support for the bill, the coalition calls very strongly on the government to monitor and to review the impact of these reforms to ensure that they are working as envisaged and, indeed, have no unintended consequences on ADF personnel, particularly in relation to the operation of this interpretation of the application of the rules of evidence. In keeping with our previous examination of such issues, the coalition also believes that a review by the Senate Standing Committee on Foreign Affairs, Defence and Trade should be undertaken to ensure that there are no unintended consequences to these reforms. Effectively, that would be part of the ongoing relationship of the committee with the ADF on these matters of military justice. It may at times be considered to be an onerous relationship, but I think it is a very important relationship—and so does the coalition—for ensuring that the changes which are taking place are implemented effectively and constructively and do not, as I said earlier, have adverse unintended consequences.

Last year the then shadow minister, Alan Griffin, expressed a view that Labor believed there were still a number of reforms to the military justice system which they would be pursuing. We would call on them in that process to continue in the same manner as the coalition did in government and ensure that any changes proposed include extensive consultation amongst stakeholders, particularly within the ADF, as well as extensive scrutiny in the parliament.

The question of consultation is a very important one. I see Senator Bishop in the chamber today. He may well recall that on the occasion of the hearing on this particular bill it became quite evident to the Senate committee that what we would regard as effective consultation between some eminent experts in the field of military law and military justice, including Mr Willee QC and other members of the Law Council also experienced in this area, would go a long way to obviate problems coming within the legislation when it is put before the parliament. It would go a long way to extending concepts of goodwill and constructive engagement as well, and it seems to me and it seems to us—and I think we made that reasonably clear in our report in relation to recommendations on consultation—that it is not an onerous requirement to suggest that in fact consultation takes place before the bill is presented to the parliament. These are very narrow areas of law. They are very narrow areas of military law, and military law itself is narrow enough. There is not a nationwide influx of people keen to make submissions on these matters, as I am sure Senator Bishop will attest, but those who do—those who have the expertise, those who have the interest—are by and large people to whom it is worth listening. It was immensely frustrating on occasions to know that individuals and organisations such as the Law Council who were more than willing to give their time and their expertise to make a constructive contribution came at the end of the process, it seemed to us, not where they may have been more useful in the development stages of the process. I place those remarks on record in relation to consultation to emphasise that. It would certainly make relationships between committees and those proposing legislation even healthier than they are now and it would be a very important step in the process.

As I said in my earlier remarks, the bill also introduces a number of significant enhancements to ensure that the right balance is struck between maintaining effective discipline and protecting the rights of individuals. The coalition, as it did in government, does commend the bill to the Senate. I say in closing that it is worth observing some aspects of that 2007 report of the Senate committee—it is not a large report—and the remarks made by Mr Willee, both in his private capacity and as the chairperson of the Military Justice System Working Group of the Law Council, in relation to the operation of the rules of evidence and why he was so concerned about that in the context of military justice. They are remarks worth noting, and as the evaluation and monitoring of the effect of this bill goes forward I think they could be borne in mind.