Mark Bishop (WA, Australian Labor Party) Share this | Hansard source

The Defence Legislation Amendment Bill 2008 forms stage 2 of the very important reform of the military justice system in this country. In fact the bill is in large part, as Senator Payne just outlined, the same as that passed by the House of Representatives before the dissolution of parliament prior to the election last year. Several changes, taking advantage of the extra time, have been made, including some recent initiatives by the newly elected Rudd government.

This reform has taken almost a decade, after at least six reviews, including those by Mr Burchett QC, Justice Abadee and several extensive parliamentary inquiries, to name a few. The seminal work, however, was the report of the Senate Foreign Affairs, Defence and Trade References Committee tabled in this place in May 2005, and I pay tribute to my predecessors and colleagues on that committee. Not only did that report hit the mark but the committee’s interest and commitment was such that it has continued to oversight the implementation of the government recommendations. That is a feather in the cap for that Senate committee and, as current chairman, I say that with some pride.

For those who question the role of parliament in securing real accountability of government and that of the bureaucracy, I can think of no better example to cite. I think that the credit must also go to members of that committee, including former government members who proved to be senators of great integrity throughout those years. The issues were at all times treated objectively, in the public interest and without fear or favour to the government of the day. The fact that the committee continues its oversight of the reform process is testament to that continuing commitment.

This bill is effectively the second and final phase of the reform process. In getting rid of the previous court martial system, these reforms have instituted a new model much closer to that enjoyed by civilian society for so many years. We now have an independent military court with provision for trial by jury, an independent director of military prosecutions and an independent provost marshal. We now have in this bill all the processes that will make those systems work properly. We have a system of review, appeals, election to opt for trial, and all the other protections for ADF personnel which, it must be said, we all take for granted. It must be stressed, however, that, unlike the civil system, there are some compromises in this continuing system. Essentially, those compromises reflect the need for military justice to support the system of military discipline. I believe that, having heard the debate argued strenuously before the committee in recent times, we now have that balance pretty well right. We accept that the dispensation of military justice for minor offences must be swift and efficient to be effective. At the same time, though, justice must still be done.

Perhaps the one issue which exemplifies this issue best is the debate had before the committee on the rules of evidence. It was argued by the Defence representatives that the rules of evidence were complex, convoluted and too difficult for officers in the field to understand. In any case, it was argued, there was an automatic system of review where any shortcomings could be quickly corrected. It is true, of course, that the rules of evidence are indeed complex and convoluted. In some jurisdictions, such as the AAT, they do not apply at all. Nevertheless, there is still a discipline about evidence, whereby its veracity has to be tested. Indeed, that is the hallmark of our entire justice system. Even in the AAT, I understand, despite the lack of provision, the rules of evidence still operate, although perhaps instinctively, in the overall interests of equity and fairness.

The committee heard in evidence the ADF assertion of the impracticability of applying the full rules of evidence. It also heard from a witness—a member of a law council but who was not representing the views of that council—that such removal of the rules was a complete denial of justice. Indeed, members of the committee in the last parliament were persuaded by his view and, in their report of November last year, the committee recommended that in the rules governing the procedures of the system a note be added recommending that the basic principles be adhered to. As the minister’s second reading speech has indicated, the Rudd government has determined to go one step further. I am, therefore, very pleased to see the amendment made to section 146A(2)(b)(ii), whereby a summary authority:

... must comply with the basic principles of those rules relating to relevance, reliability, weight and probative value ...

I suggest that is an excellent change and a very worthwhile development. It does not require the complexity of the full rules of evidence but sets in place a formal recognition of their relevance. As they are statutory rules, we will still have the normal powers of disallowance if we are not satisfied with the extent to which these principles are respected.

There are too many changes in this bill to do them all justice. The minister’s second reading speech is detailed and the explanatory memorandum is, for once, it must be said, extensive and descriptive. However, I want to identify a few changes that are important. The bill includes a number of other significant enhancements to ensure the right balance between maintaining effective discipline and necessarily protecting the rights of individuals. For example, the bill enables service tribunals to deal with offences in respect of a more contemporary range of illegal narcotics up to the trafficable amount in Australia. This brings military law into line with current public policy, within the context of a no-tolerance regime. The bill also allows the suspension in part or whole of a greater range of punishments under the DFDA. For example, it removes the separate and more severe scale of punishments for Navy, hence bringing consistency with the other two services. It provides that the status of a summary conviction is expressed to be for only service purposes so that members of the ADF are not unduly affected by disciplinary infringements long after they leave their service. It provides for 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 has been added to ensure the timely handling of summary trials. This goes back to the issues of effectiveness and efficiency.

I also want to mention in a bit of detail the amendment made in the House yesterday with respect to the handling of multiple offences where those offences vary across the spectrum of severity or where there is more than one accused for the same offence or a range of offences. I suppose this provision, quite remarkably, must be seen to be a bit of an oversight, but, to be fair, operational experience recently has quietly and quickly identified inefficiencies. No doubt in time there will be more as the system beds down.

The amendments will correct an anomaly in respect of the constitution of the Australian Military Court, the AMC, for the trial of certain classes of offences. They will provide for the AMC to be constituted, where there is a combination of different classes of offences appearing on a charge sheet, according to the more serious class of offence. The amendments will also provide for the situation where there is more than one of the same class of offence on a charge sheet. How a co-accused’s election options are treated where they—that is, the co-accused—appear on the same charge sheet is also provided for.

The amendments will also amend a provision relating to the powers of the Director of Military Prosecutions, DMP, in respect of his or her decision to require a trial by military judge alone for a class 3 offence. They will ensure that the DMP may exercise some, all or any of his or her powers under section 103A to reflect the proposed election regime. The amendments will also make it clear that the summary authority which deals with a charge following an accused person’s decision under these provisions will not be obliged to try the charge. The existing provisions in the DFDA will apply to the relevant summary authority in respect of what must be done with the charge. Given that these amendments are new and have not been addressed in debate so far, I think it is important that that explanation be on the record. They are practical changes which provide efficiency but are also in the interests of the accused. Instead of having numerous trials by different authorities, including those by a single judge, they can have all charges considered together without impacting upon their rights.

There are two other elements from the 2005 report which have been overlooked these days as we concentrate on a new system of justice in an institutional sense. Indeed, most of the discussion that has occurred over the last 12 or 18 months has reflected changes to the various institutions or the creation of new institutions to give effect to changes sought by government. But they are reform of the system of grievance management whereby grievances are submitted and dealt with and reform of the military police.

With respect to grievance handling, the biggest single issue was that they were simply not dealt with under the old regime. The committee received numerous complaints about dismissive behaviour, poor investigation, bias, compromise and overall mismanagement. The system was simply not working. Appeals were from Caesar unto Caesar and grievances more often than not were ignored or, in a range of instances, resulted in persecution. Records were improperly amended or simply went missing. These were the common refrains time and time again. The committee records are full of these exact submissions.

It seems to me now, however, that this has been by and large resolved; it has been fixed. If it has not, then maybe the committee simply has not heard in more recent times. No doubt there is a legacy of unhappy cases, many perhaps unresolved, but for the present I do not see any evidence of great ongoing concern. Let us hope I am right and, if I am, we should be well pleased with those manifest improvements to the system of grievance management in more recent years.

The second matter concerning the capacity of the military police is not so well known. We know there is a new and independent provost marshal, and we know there is a new, single structure combining the former service police. At least that is one good example of the insular views of each of the services being broken down for the common good. Perhaps we might see the same model spread to mental health care and many other insular functions with greater common potential for improvement to serving personnel.

The bungled Kovco investigation is a classic of how much the military police forces had been allowed to decline in more recent years. You just have to read the transcript from the board of inquiry and read it again in the reporting of the current coronial inquiry in New South Wales on the same matter. It is an essay in incompetence, with no support from the chain of command whatsoever, with the inevitable result. We certainly hope that, with the introduction of the new training regime for military police, all of that is history. We trust resources are being provided, particularly, as I say, for the training. Perhaps this is one aspect the committee might like reported on when it does its public hearings into the third and fourth reports provided by the Department of Defence.

We can only hope that the debate on the relative merits of the service police versus the civilian police forces with respect to investigative skill and independence was not in vain. That is going to be the real test for the Provost Marshal, simply because the next time the civilian police are called in to investigate a matter where the military failed it will be proof that nothing has changed. With those comments, I commend the bill to the chamber.