Kimberley Kitching (Victoria, Australian Labor Party, Deputy Manager of Opposition Business in the Senate) Share this | Hansard source

I'm pleased to speak on the Defence Legislation Amendment (Discipline Reform) Bill 2021, which was introduced into the parliament in August and passed the House of Representatives on 1 September. The bill is aimed at reforming the system of military discipline for those who serve in our Defence Force, by improving the way discipline officers and summary authorities operate under the Defence Force Discipline Act 1982. Our military discipline system provides the Australian Defence Force with an Australian legal framework that is able to be applied on operations anywhere in the world. However, the system of discipline in the Australian military has become slow and unresponsive under the weight of administration required to address minor breaches of discipline. Reform is required to modernise our current system that predates modern warfare, technologies and tactical requirements and the way our Defence Force is organised. On this basis, Labor will be supporting this legislation.

To defend Australia and our national interests we must maintain an operationally capable Defence Force that demonstrates high levels of discipline, professionalism, competence and commitment. 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 our Defence Force—to be applied fairly and effectively in all circumstances.

The system of discipline administered by the ADF must encourage the men and women of our Defence Force to be accountable for their actions and, importantly, to learn and grow from their mistakes. Because the people in our Defence Force work and live with one another and within teams, they have a perfectly reasonable expectation that any wrongdoing or breach of discipline will be dealt with quickly and fairly. Failure to do so may put the lives of others at risk, erode morale and adversely affect unit cohesion and fighting capability.

Military service and the need to maintain discipline place constraints and responsibilities on the people of our Defence Force. These challenges are unique and are experienced by few of their fellow Australians. A separate system of military discipline is, therefore, essential to enable the Defence Force to deal with matters that relate directly to its discipline, morale and operational capability. It is in this context of a disciplined fighting force that in some cases breaches of military discipline by the people in our Defence Force are dealt with more severely than would be the case if a civilian engaged in similar conduct.

The military discipline system operates in Australia and overseas in times of peace, conflict and war. 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 all lawful commands, including orders that involve considerable risk to their own life and the lives of others or that require them to use lethal force against an enemy.

The military discipline system administered under the Defence Force Discipline Act has three tiers. At the lowest level is a disciplinary infringement scheme. This enables minor breaches of discipline to be dealt with by the issue of an infringement notice. A person can choose to admit the breach of discipline and be dealt with by a discipline officer, who may impose a low-level punishment, such as a fine or reprimand. This has some similarity to being issued a speeding ticket by the police—you can accept the ticket and pay the fine or you may choose to contest the matter in court.

The second tier is the summary system. This comprises subordinate summary authorities, commanding officers and superior summary authorities. These proceedings are adversarial in nature, with criminal-law-like procedures within the disciplinary infringement scheme, and are not administered by legally trained personnel. At the highest level are superior tribunals. These comprise Defence Force magistrates and restricted and general courts martial, which deal with more serious matters and apply criminal law procedures.

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 the 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 to not attending duty on time to the unauthorised discharge of a weapon to having dirty boots on parade. Discipline lies at the heart of service in any defence force.

In 2005 the Senate committee commenting on change within the Australian Defence Force military discipline system 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 in 2003 to hear evidence from ADF personnel and their families about the military justice system.

The broader context for this bill is that Australian Defence Force commanders have a duty of care to all people under their command, whether at home in Australia or deployed overseas. The priority is not just about maintaining discipline. Equally important is the welfare of our sailors, soldiers and aviators who serve in the Australian Defence Force. By simplifying the disciplinary processes, the time required to resolve commonly occurring minor breaches of military discipline could be significantly reduced. This would ease the strain on those involved with a disciplinary process.

A 2017 review directed by the Chief of the Defence Force found that aspects of the current system were overly complex and difficult to use. The review found, in particular, that summary discipline matters were taking too long to resolve and adversely impacting the people accused of wrongdoing. Delays in resolving breaches of military discipline also adversely affects the morale and, potentially, the safety of other people. This is particularly so in circumstances where the people in our Defence Force live, work and operate closely together.

The current adversarial court-like summary disciplinary system has not been serving our defence personnel as best it might. Many senior non-commissioned officers and junior officers are reluctant to use it. There has been a lack of confidence in applying and understanding the complex court-like requirements of the adversarial summary proceedings. As a consequence, use of the summary discipline system has been in constant and consistent decline.

The operation of the summary discipline system has proved problematic in recent conflicts and the nature of modern warfare has changed significantly since the act commenced in 1985. Our Defence Force personnel have been deployed in smaller Australian formations, often either as independent units or embedded with our allies, frequently far from administrative support. The complexities of the summary discipline system, particularly given the frequency, nature and length of overseas operations, has often resulted in unacceptable delays in resolving or finalising breaches of military discipline.

Given this feedback, Labor acknowledges that the reforms in this bill would build on and are consistent with the Defence values of service, courage, respect, integrity and excellence. But we question why it has taken four years to bring the bill on. The reforms will provide Australian Defence Force 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 and fairly. We note more serious offending would continue to be dealt with by a superior military tribunal or referred to civilian authorities as appropriate.

The bill will reform the discipline system in three ways. Schedule 1 will expand the operation of the highly regarded and effective disciplinary infringement scheme. The changes will allow a greater range of minor breaches of military discipline to be dealt with more quickly and fairly and with less formality within the disciplinary infringement scheme, rather than by the more complex and adversarial service tribunal processes. This bill introduces a new senior discipline officer position, creating a two-tier disciplinary infringement scheme. Labor welcomes additional safeguards included in the bill to ensure the scheme continues to be operated fairly. In particular, this reform to military discipline preserves the right of anyone facing a disciplinary infringement to make an informed decision, whether to choose to have their matter dealt with under the 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. It reduces its complexity by removing the subordinate summary authority. It would realign the rank and punishment jurisdiction of summary authorities, ensuring a 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 would further reform the military discipline system by introducing several new service offences. These relate to cyberbullying, receipt of a benefit or allowance and failure to perform a duty or activity.

Cyberbullying conduct is corrosive to discipline and can have an extremely adverse effect on the mental wellbeing of its victims. The new cyberbullying service offence would send a very strong message to those in our Defence Force 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 by putting a stop to the cyberbullying behaviour before it gets out of hand. It would protect the people who choose to serve in our Defence Force.

Current safeguards for persons 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 senior discipline officer. Additional safeguards included in the bill are: the requirement for any reasonable excuse to be considered before issuing a disciplinary infringement notice; the ability of a discipline officer or 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. On review, a commanding officer will have the power to confirm a punishment decision; substitute a punishment decision with a reduced punishment; or decide that no punishment be imposed, or that the discipline infringement be dismissed with no punishment imposed.

On the surface, these proposed changes would appear to have a positive effect on improving the administration of discipline for all those who serve in our Defence Force. However, it was not clear to us whether the changes were strictly necessary and there had been little consultation with legal experts in the wider defence community prior to the introduction of the bill. At the same time, it is important to ensure that we get the balance right between administrative efficiency on the one hand and fairness, the preservation of legal rights and access to justice for ADF members on the other. In particular, the minister had not provided a compelling explanation or any concrete evidence as to how exactly the amendments in the bill would enhance the ADF's operational effectiveness. In addition, Labor was concerned that, under the proposed changes, ADF members would have to choose to be dealt with under the infringement scheme. Further, the adversarial procedures, simplified rules of evidence and Criminal Code Act 1995 provisions that apply to summary authority proceedings will not apply to the new disciplinary infringement scheme. Labor's view was that any changes should not remove rights and should be broadly consistent with what applies at the upper levels of the military justice system and in civilian courts.

We do not want to stand in the way of genuine reform. However, we want to ensure that the military justice system 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 and that protect the rights of ADF personnel and ensure fair treatment.

These are the principles that would guide an Albanese Labor government and we would look to continue the process of reform to ensure military justice is fair and effective. Labor agreed to support the bill in the House but refer it to a Senate inquiry and to reserve our final position in the Senate subject to that. To that end, Labor moved to refer the bill to the Foreign Affairs, Defence and Trade Legislation Committee for an inquiry to ensure proper scrutiny and stakeholder consultation and to help clarify the consequences of the amendment.

The committee introduced a short inquiry on the papers and this provided an opportunity for defence community stakeholders, like the Australian Defence Association, the Defence Force Welfare Association and legal experts, like the ANU Centre for Military Security and Law, to examine and comment on the bill. Submissions to the inquiry were very supportive of the bill. Most stakeholders supported removing the subordinate summary authority and expanding the disciplinary infringement scheme to improve its effectiveness to deal with minor breaches of discipline. This should allow for early intervention and reduce delays thereby improving operational effectiveness. Submitters also broadly endorsed the proposed restructure of summary authorities to realign the jurisdiction of discipline officers and summary authorities in terms of the types of breach, rank of individual and available punishments. Most also agreed with the introduction of new service offences to better manage breaches of discipline in the modern ADF.

We note some submissions raised concerns about aspects of the proposed reform of the disciplinary infringement scheme and the new service offences, notably the new cyberbullying offence. However, the committee was satisfied with the need for this offence and the protections available for ADF members dealt with under the offence.

The committee reported back on 14 October recommending the bill be passed without amendment. Based on the committee's recommendation, on balance, Labor will now be supporting the bill in the Senate in its current form. We note that some submitters to the inquiry suggested that changes may need to be reviewed down the track to see if they're operating as intended and that the advantages outweigh the disadvantages. We think that this is a sensible proposal. In addition, as some submitters noted, the Royal Commission into Defence and Veteran Suicide is likely to examine the role of the military justice system and issues of abuse, mistreatment and bullying in the ADF. So it's possible that further reforms to the military justice system may be required in the near future, based on its findings and recommendations. (Time expired)