Jordon Steele-John (WA, Australian Greens) Share this | Hansard source

[by video link] As I speak about the Defence Legislation Amendment (Discipline Reform) Bill 2021, as the spokesperson for the Greens on matters in relation to peace and veterans' affairs, I would like to acknowledge that the context in which we have met as a chamber this week has been one in which there is now an operating royal commission investigating matters relating to Defence Force suicide. I'd like to pay tribute to the many campaigners, family members and advocates who have fought for so long to achieve this vital opportunity for justice in the face of much resistance and dismissal, particularly from the current government. I can't help but reflect upon the fact that this is at least the second royal commission, if we include the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, that this government has been dragged to implement and action, kicking and screaming, by the relevant community.

Given that context, I'd like to make a couple of key observations in relation to the bill. I want to put on the record clearly that the Greens cannot support the proposed reforms to the Defence discipline system at this time. The Royal Commission into Defence and Veteran Suicide has only just started, and its public hearings and examination of evidence have only just got underway. We note that the disciplinary system will be under intensive investigation and scrutiny, which is exactly the right thing to do. It is our view that any reforms proposed should be considered in the light of evidence and recommendations that come from the community and the commission through this process. Whilst we understand that the intention of this reform is to simplify the operation of aspects of the disciplinary system, we are concerned that, on balance, this may serve to exacerbate existing cultural and structural issues that we know cause considerable harm to serving personnel, including, but not limited to, bullying, gender-based violence and bastardisation.

We have significant reservations about the proposed expansion of the disciplinary infringement scheme. As stated by GAP Veteran & Legal Services in its submission to the inquiry on the bill:

Reforming the operation of the scheme is not, of itself, accomplished by merely expanding its application such that it can be 'used in more situations'. In light of the fact that, in accepting the jurisdiction of the scheme as opposed to being dealt with by a tribunal process inclusive of representation by a lay defending officer, the member is, in essence, pleading guilty to the offence, greater safeguards are required to prevent or limit abuse of the process.

We note with concern that the proposed legislation expands the types of offences that the scheme deals with: anything from turning up late to work to behaving abusively towards colleagues is captured in this scheme. We're concerned that the scope of offences doesn't amount to just minor service discipline matters, as suggested by the explanatory memorandum. These concerns are exacerbated by a lack of clarity on what happens should a servicemember become a repeat offender. Do they continue to get away with minor disciplinary actions when, in reality, their behaviour warrants more severe consequences? This is one of the key outstanding questions.

Our view is that the application of the rule of law and access to justice may not be achieved by expanding the scheme in this way. Further, we accept evidence from the authors of the GAP submission that the disciplinary infringement scheme has been improperly used and weaponised by ineffective chains of command—specifically, that this scheme and its structure enable more senior members of command to exercise their authority unfairly and to issue infringements as a way of asserting improper power over more-junior members.

We also note that a key safeguarding mechanism that is meant to counterbalance the abovementioned issues—the Inspector-General of the Australian Defence Force—is subject to considerable criticism and is likely to form part of a lot of the evidence to the royal commission itself. This again highlights the need to delay consideration of this legislation until the effectiveness of this oversight body in upholding the rights and responsibilities of the ADF and its serving members is better understood.

As is the case in many other areas of law, the Greens are concerned that the reliance on delegated legislation—in this instance, empowering the CDF to make rules in relation to the use or discretion of disciplinary infringement records—diminishes the role of parliamentary scrutiny and of parliamentary oversight. As was made clear in submissions to the inquiry, there is a great need to ensure the application of the disciplinary infringement system: that it is operating effectively and that its application is one which does not leave the CDF without limits on transparency and accountability. To this end, we note and support the concerns raised by the Senate Standing Committee for the Scrutiny of Bills. It has stated in its digest that the committee has raised concerns about the proposed section 9FA and section 42 under the relevant sections of the bill. That makes particular mention of these concerns.

Notwithstanding the details of the bill, the Greens would like to put on record that, in principle, defence being empowered to investigate itself and its personnel without sufficient safeguards and accountability to civilian authorities is a cause for significant concern. The proper and fair application of the law and the justice system is essential and goes to the very heart and integrity of a functioning ADF. We hear the concerns of serving and ex-serving personnel who have experienced significant systemic violence and injustice through the defence disciplinary system, and we are very alive to the reality that this system may not work as intended.

In summary, we have a number of principled and substantive concerns with respect to the proposed changes to the disciplinary system and the ways in which they will work in practice. In our view, these proposed changes carry the potential of serious unintended consequences that must be considered fully, particularly in the light of the current royal commission, which will gather evidence on the systems and culture that underlie the ADF and its functions. We note and acknowledge that this bill is proposing a number of important updates to the nature of offences to be considered as offences by the disciplinary system, particularly cyberbullying, but we think the application of these provisions and the consequences they carry must be further assessed before they are implemented. For those reasons, we will be opposing the bill, alongside Senator Lambie.