Mark Bishop (WA, Australian Labor Party, Shadow Minister for Defence Industry, Procurement and Personnel) Share this | Link to this | Hansard source

The Defence Legislation Amendment Bill 2006 is a further instalment in the government’s response to the report of the Senate Foreign Affairs, Defence and Trade References Committee on the effectiveness of Australia’s military justice system. That report was tabled in June 2005, some 17 months ago. The government’s response came 13 months ago. That in itself is an indication of the lack of priority that the government has given this particular matter. And, I may add, it came after six other negative reports on military justice.

This bill makes three principle amendments to the Defence Force Discipline Act 1982. First, it creates the Australian Military Court; second, it creates military juries; and, third, it creates a power for the CDF—the Chief of the Defence Force—to set up a Chief of Defence Force commission of inquiry. It also provides for changed appeal provisions, categorises offences for the purposes of trials and makes a number of other consequential amendments, including transitional arrangements.

At the outset let me state the position of the opposition on this bill. It is one of general criticism. Fundamentally, there is a yawning chasm between the government’s response to the Senate committee report, as reflected in this bill, and the recommendations of that Senate committee. At the heart of this is a deep separation between the government’s acceptance of the military view that military justice should remain within the defence hierarchy and the Senate committee’s recommendation that it be removed to a civilian model. This is a deep philosophical divide marking the determination of the traditional defence establishment to remain a law unto itself, as it has been for many centuries.

Labor was critical of the government’s acceptance of the military review rejecting the committee’s recommendations and, to this date, we remain so. The unanimous, all-party committee view was that, on the damning evidence to that committee, radical reform was essential. Until the essential reform of making the military justice system truly independent, outside the chain of command, the system would remain compromised. It would remain biased and unfair and continue to fail those seeking justice.

This bill implementing the government’s response provides little remedy. In fact, this bill is more of another propaganda effort. The minimal change proposed is presented here as groundbreaking reform. That, by the way, is also the view of the Senate committee. The committee’s views, especially the dissenting views of Labor senators, ought to be noted. The amendments, as we have now seen, are limited. Whilst they have addressed some weaknesses, overall they fail to address our fundamental objection.

The simple reason for Labor’s opposition is that the so-called new system remains part of the military hierarchy. It is staffed by military personnel without any of the attributes which denote proper systems of justice in the modern world. The use of the word ‘independent’ by the minister to describe this new system is simply spin—nothing other than spin.

The presentation of the bill, in both the minister’s speech and the explanatory memorandum, is misleading. The bottom line is that the government wants no change to military justice and is happy to fudge it so that the dysfunctional system will effectively remain in place. As a result, Australia’s fine men and women in the ADF will continue to endure a system of justice that is less than the community standard. We believe they deserve much, much better.

The detail of the Labor argument critical of the bill as a whole has been set out by my colleagues in the House of Representatives chapter and verse. I will not repeat all of those arguments, but I do want to deal with the substance of the amendments. Our original criticism of the military court established by this bill was that it was not a court at all. The old system was prone to bias, compromise, unfairness and abuse of individual rights. The Senate committee recommended that a new military court be established of similar nature to that established under chapter III of the Australian Constitution. As such the court would be established outside the chain of command. It would operate in the same way as a civil court, with independently appointed judges in the standard manner considering all evidence fairly and with all due process. Judges would be drawn from experienced and well-qualified legal people in the community. Defence experience would be secondary to judicial qualifications. As such they would have similar security of tenure as other civil judges and would be appointed by the Governor-General. In short, the committee could see no reason for such a court to retain any trappings of the military.

The court proposed in this bill bears no resemblance to the committee’s model. It is to be comprised of serving military officers who are legally qualified but do not necessarily have judicial experience. Originally, they were to be appointed by the minister for five years only, ceasing automatically on retirement, and denied promotion during office. At least, however, the government has now conceded those weaknesses. The amendments, which we support, transfer the power of appointment and dismissal to the Governor-General. That is a clear win. They also extend the term of appointment to 10 years, though still terminating on retirement from the ADF. That provides for some greater certainty and for building continuity and expertise but it still retains the connection with the chain of command. That is a limited improvement and a minor win.

Retirement from the ADF ought not disqualify any judicial appointment. In fact, it contradicts the power of appointment and removal by the Governor-General alone—and, as we have seen, retirement from the ADF is pretty easy to secure. That attitude was previously expressed in the explanatory memorandum such that if a judge ‘no longer meets his or her individual service deployment requirements’ they may be dismissed. How that sits with the power of the Governor-General is not clear.

Promotion for judges, while still denied during office, is to be automatic after the first five years but to a ceiling rank of brigadier or the equivalent rank in the RAAF or the Navy. This concession at least might remove one small disincentive to becoming a judge. We also support that amendment.

Another amendment changes significantly the attitude to jury trials for category 1 offences—that is, offences of a serious criminal nature. Instead of the provision of six-man juries with majority decisions, the amendment provides for 12-man juries with unanimous verdicts. That is also a win and at least bears some resemblance to the modern civilian model of justice which the government seems hell-bent on denying ADF personnel.

Another amendment to jury trials alters the majority verdict for lesser classifications of offences from four out of six to five out of six. This may be minor but at least it is a concession heading in the right direction, in favour of civilian standards of fairness.

Finally, and most importantly, the amendments concede the point the committee made that this court, whatever its shortcomings, should be a court of record. In fact, it remains breathtaking that the government should have denied this elementary point of fairness and justice in the original bill. But, as always, there is a list of qualifications which potentially render this major concession useless. Clause 13B provides at the end of section 148 the following escape route for secrecy and cover-up—the bane of military justice:

… the Court may order that the whole or a specified part of a record under subsection (1) … is not to be published if the Court considers that such a publication would be inappropriate—

a wonderful word, inappropriate—

taking account of the interests of security or defence of Australia, the proper administration of justice, public morals or any other matter it considers relevant.

Think about that for a minute. Firstly, we have the most mealy-mouthed word possible that you use whenever you make a commitment but you want to enter a caveat to not deliver the commitment—that is, whatever is ‘appropriate’ in the circumstances. Then we say you can take into account the interests of ‘security or defence of Australia’. I am a reasonable man. There may well be a sound proposition that in a military court you should have proper regard to the interests of security or defence when trialling important matters. I believe there is probably an argument for that. But cop this: now the caveat not to have a record of proceeding is extended to ‘the proper administration of justice’. So we are in the situation where we have a tribunal, called a court, dispensing justice, but the ‘proper administration of justice’ can be used as a reason not to have a record of proceedings. If that is not Monty Pythonesque, what is?

But it gets even better. Whatever are ‘public morals’ in relation to the administration of military justice for serving personnel charged with civilian or other offences? If that is not good enough, if that is not wide enough—interests of security, defence, proper administration of justice, public morals—there is ‘any other matter it considers relevant’. That is the caveat that is entered into the creation of a court of record. So the extent to which the new court might be a court of record could easily become a fiction, as we have seen these smokescreens used time and time again to cover the truth. Putting it politely, we appreciate the concession but remain sceptical as to the honour of its intent.

There are various other amendments concerning terms and conditions of appointment from state jurisdictions and contempt of court matters which were clearly drafting oversights. Refinements have also been made to the process of jury deliberation. The opportunity has been taken to finetune those provisions as well as others in what seems to have been a pretty hasty drafting task in its first instance. The opposition supports those amendments. They go some way towards removing the committee’s objections to the bill, but stop well short of an ideal solution. It is a salutary experience to have dragged a stubborn government so far, but we know that the quality of military justice will improve, albeit not to optimum levels. On behalf of serving ADF personnel, we live in hope that the government’s attitude, denying them the standards of civil justice, might continue to mellow.

There remains, however, a significant issue with this proposed military court which is yet to be resolved. It concerns the status of the court as considered by the High Court. This particularly concerns the court’s jurisdiction over criminal matters, for which it is considered to be ill-equipped. In legal terms, there has long been a debate about the authority of military tribunals, which have been challenged in the High Court for their lack of judicial independence and impartiality. The view expressed by the Judge Advocate General is that, the closer such a tribunal can be aligned with arrangements for a court established along the lines of a chapter 3 court, the less likely a challenge might be. The pity is that, if the government had accepted the committee’s recommendations for a military court akin to those established under chapter 3 of the Constitution, this doubt could have been avoided. In fact, there is now a number of new applications before the High Court retesting this very issue with respect to existing military tribunal decisions.

These amendments do go some way to giving the court some enhanced status compared with the original draft. This especially concerns the court being made a court of record—though the qualifications, as I discussed before, are of ongoing concern. The court still looks like it is part of the chain of command, and the minister’s fine words change nothing. Indeed, as the Judge Advocate General of the ADF has stated in evidence to the Senate committee, this court looks like a tribunal. The consequences, however, are very serious. As the JAG pointed out in his evidence to the committee:

The AMC will have complete (and exclusive) Australian jurisdiction over members of the ADF outside Australia ... Given the present and likely future tempo of operations and exercises, it is entirely foreseeable, if not likely, that there will be charges of the most serious offences (such as rape or murder) against members of the ADF at some stage. The AMC would be the only Australian court which would have jurisdiction. The notion that such charges would be dealt with by a body described as a ‘tribunal’ ... is extraordinary.

The JAG went on to say that the bill represented a wasted opportunity to establish a military court with proper independent status.

Labor’s view is that, if this court is to remain, it should have its jurisdiction limited to service disciplinary matters. As a minimum, it should not preside over civilian criminal offences committed overseas. The Law Council of Australia is equally scathing in its criticism of the proposed court. This is not just for legal reasons but also for practical reasons of recruitment, retention, and the strong perception of a lack of independence.

In my few remaining minutes I will turn to the other main provision, that of the proposed Chief of Defence Force commission of inquiry. This does have something to recommend it in that such inquiries will be mandatory and the appointee to conduct it will be a civilian with judicial experience. This would appear to be somewhat of a contradiction to the hardline attitude to the military court on which only ADF personnel can serve. So what is it about a CDF commission which is so different with respect to real independence from the chain of command ? It would seem that, at last, the repeated tragic deaths by suicide of young people in particular have hit home. If this is a personal expression by the CDF of his commitment to fix the problem, we are all pleased. We support this proposal because it is a step in the right direction. Indeed, it is a great pity that the initiative was not taken many years ago. As I am advised, it is something which does not need legislation. In fact, there has been speculation that the process could have been used in lieu of the board of inquiry into the death of Private Kovco. It is a great pity that such an opportunity was not taken. As we have seen, the board of inquiry report has already been widely reported in the media as a whitewash. Regrettably, a comparison of the evidence taken, and the contents of the report, do lead to that conclusion.

In the last decade, 79 ADF personnel have taken their own lives. That is both distressing and appalling. Yet we know so little of the causes, except that bullying and harassment seem to be common elements. Having an improved system of investigation truly independent of the military is a good start. Beyond that, though, it is difficult to see any other change for the better. A culture of bullying and harassment is entrenched in the ADF and little has been seen to change. For example, of those 79 suicides, no disciplinary action was ever taken against a single person. This is perhaps further evidence of the link between a failed military justice system and failed discipline.

The government would like us to think that the evil of bullying has been exorcised. If we could believe recent media stories of the new world, such as the very rosy story that appeared on Four Corners a few weeks ago—and we would like to—we should all be pleased. Then again, it is not long since the death of Trooper Lawrence from heatstroke in the Northern Territory last year on which no action was taken. The coroner found that the death was the result of negligence and Comcare is suing Defence for the maximum penalty under Commonwealth occupational health and safety law. Yet, in answers to my questions on notice, the coroner’s opinion was dismissed and the evidence of a prior warning was denied. This is simply not credible, so we await the Federal Court decision on the appeal with great interest.

However, this proposal for CDF commissions is also subject to some serious criticism from the Law Council—again, unheeded. The Law Council’s view is that, if this provision is to be enacted through regulation, there may be undesirable consequences. The council believes that, given its seriousnessness, the essential provision should be in legislation, not in regulations, and subject to direct parliamentary scrutiny. Labor supports that proposition. The reason for this view is that there are many practical considerations which have been overlooked.

First, it is not considered practical to have such an inquiry into every death in the ADF, including road accidents. It is noted, though, that the council includes suicides in this category, with which we could not agree except to the extent that a CDF inquiry should not proceed until the coroner has determined cause of death. There is nothing more distressing than the suicide of a young person in particular, and we believe such occasions must be examined with the utmost care. The conflict with the powers and responsibilities of state coroners and the lack of suitable arrangements with some states is cited as another concern whereby the CDF inquiry could be unnecessarily complicated.

Finally, the Law Council is concerned at the availability of civilian judges to conduct what could be up to 40 inquiries a year, when the demands on the judiciary are already very high. The council’s suggestion that a wider pool of expertise be provided for, including retired judges, QCs and SCs, is a sensible recommendation which we support. The opposition supports the bill and its principal amendments.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

Senator Bishop has just gone quite thoroughly through all the provisions of the Defence Legislation Amendment Bill 2006 and the amendments that will be made to the act, so I will not go over the same ground again. I would like to reinforce some of the concerns that he raised and associate the Democrats with them. Being on the crossbenches with a lot of different areas I have to try to cover, I have not been able to follow this issue with the detail that I would like.

I was involved to a relatively small degree in the original Senate committee inquiry into the military justice system and I thought it was a very good report. I was pleased to be a part of it and I have been seeking to follow progress since that time. I share the concerns in regard to the inadequacy of some of the responses. I suppose I have to say, to be balanced, that compared with the way that many ministers respond to other Senate committee reports the government and the Defence Force are doing pretty well. It would not be hard to do well by comparison because most government responses to committee reports are abysmal. They are extremely slow for starters and often fairly dismissive as well when their response does finally come down. I would at least acknowledge again on the record there was a relatively prompt response by the then Minister for Defence, Minister Hill, which was accompanied by some action, and there is continuing action.

I do think it is appropriate to acknowledge that, even so, I am not satisfied with all that has been done but it is also appropriate to acknowledge that there has been action, there continues to be and there will be further action. I know the committee, which I am no longer a member of due to time constraints, is continuing to follow through, to pressure the government and defence forces and also to monitor progress. That is very commendable because one area where committees sometimes fall down is in the follow-through when they have produced the report and urged everybody to take it on board but do not actually then follow through with the issues. The committee is doing that and I think it should be commended for that.

I have said a number of times in this place—I do not think it can be repeated often enough—that one of the core issues that affect recruitment and retention of personnel relates to how people in the ADF are treated, and the military justice system is a key part of that. When people get a raw deal then not only they but their families really sense that injustice and they let a lot of other people know about it as well. It is a very big signal to a lot of people who are thinking about joining the military that perhaps they might want to think again. If people do not think they will get a fair deal when they run into difficulty in any organisation, line of activity, pursuit or profession then, not surprisingly, they are far less likely to go into that line of activity. So it is very much in the national interest as well as just in the general interest of the people in the ADF that we continue to get positive reform in this area.

This legislation does go some way towards doing that. We saw today in reports of another internal investigation inquiry into the way the ADF deals with discipline and justice matters that there are still significant problems, and you cannot fix all of those by legislation or by changing structures. Those matters are important, but it is about the culture and that is something where significant improvement is still needed.

I have a lot of respect for the current head of the ADF and I believe there is a genuine desire to move things forward, but it is always a difficult job to make the sort of quite major changes that have been recommended and that I believe are still needed. I do not think any organisation has a history or role quite like the defence forces do, but in any group of that size and with that sort of history it is quite difficult to dramatically change cultures, attitudes and approaches in a short space of time. Structural reform is a key part of ensuring attitudinal change as well and that is why continued progress in this area is important. From the Democrats’ point of view that is really the key issue here.

I will not go into the fine print in the way that Senator Bishop has done but that broad principle is still important and I would also take the opportunity to link it to the equally important area, beyond the scope of this particular legislation, of how we treat service personnel, ex-service personnel and veterans when they have been injured, been wounded or run into other difficulties. I think we still have a lot of room for improvement there as well. That has some linkage to the military justice system but goes wider than that.

Whilst I always try to be balanced and to acknowledge positive moves forward when things are being done well—and I do acknowledge that you will never have everybody 100 per cent happy and have everything perfect—I think we still have significant room for improvement in the way ex-service personnel are treated and the support that needs to be provided to them when they run into difficulty. Although there have been improvements, I think there is still significant room for improvement in that area as well. On behalf of the Democrats I am keen to try to play a role in maintaining pressure and continuing to get the change that is needed.

Linda Kirk (SA, Australian Labor Party) Share this | Link to this | Hansard source

I seek leave to incorporate a speech by Senator Hutchins on this matter.

Leave granted.

Steve Hutchins (NSW, Australian Labor Party) Share this | Link to this | Hansard source

The incorporated speech read as follows—

The process by which this legislation has come about has been long and involved a great deal of exposition of the personal pain of many individuals formerly and currently serving in the ADF.

This bill is directly a response to the recommendations of the then Senate Foreign Affairs, Defence and Trade Committee References Committee’s report into military justice in 2005.

I chaired that inquiry, and I, like other Senate colleagues also serving on that committee, heard from numerous witnesses who had been dealt with poorly by the military justice system.

Military justice in this country has been exposed to significant examination over the past 10 years, ostensibly stemming from a continual failure in its ability to deliver justice in a fair and independent way.

Three High Court challenges and another underway, as well as six separate coronial, judicial and Parliamentary inquiries have all challenged the legitimacy of the system of justice administered by the defence forces.

Notwithstanding the valid argument that the ADF at times has cases particular to it, it is not true to say that only the ADF is best disposed to handle those cases.

In fact, the evidence before us suggests the opposite. The evidence before us suggests that the ADF is incapable of properly investigating cases and prosecuting them in a fair and timely manner.

There was a litany of examples brought before the 2005 inquiry of just such inadequacies.

That inquiry found that the administration of complaints was not adequate, and this was reflected in many of the submissions. There is an unfortunate and obviously incompatible convergence of the principles of criminal law and the heaving machinery of Defence bureaucracy. This nexus has produced a system rife with untrained or inadequately trained investigators; delays of several years, in some cases, in the processing of complaints; and a general lack of independence.

This has led to complainants and witnesses receiving no protection from those higher in the chain of command, and in fact have fell victim to a culture that disproves of a ‘breaking of the ranks’.

None of this is news to the Government, and in fact the point has been made continually over the past decade, and most recently this week with the release of the ADF-commissioned audit into its investigative capabilities.

The audit showed a culture of obstructing investigations by commanding officers and a chronic lack of skilled military police whose enormous caseloads are leading to delays in the resolution of investigations.

Not surprisingly, a great chunk of complaints about military justice—one in six, as a matter of fact—are directed against the military police.

The consequences of the failings of the military justice system have a very human face. They are the individuals who have felt victimised and persecuted because they have spoken out against injustices they have witnessed in the ADF, but have not been afforded the appropriate protections by senior personnel. Some of these individuals have seen their career stall or lie in tatters after spending years defending themselves against what they see as a service-wide hostility towards them. In more extreme cases, those particular individuals have been driven to more desperate means and resorted to suicide.

Left behind are the families of these individuals who have seen their loved ones crumble under incredible pressure and never dealt the justice they were searching for.

This legislation is the Government’s response to the deficiencies in the system I have just outlined.

This response, however, is entirely inadequate.

At the centre of the Government’s approach to this issue is its belief that the military justice system should remain wholly within the hierarchy of Defence.

The situation that this perpetuates is that the military judges the military. The justice meted out by the military is steeped in the very culture that the dozens of people who came forward before the Senate inquiry complained of.

This is the culture that has also been blamed for obstruction in the ADF audit into the effectiveness of its military police.

We needed to see in this legislation a ground-up reform, where the military justice system was removed from the chain of command and made truly independent.

This bill claims to do that by allowing a fixed, 10-year tenure for military judges, who would be, according to the logic of this legislation, above and beyond the chain of command.

But those who are appointed military judges are still derived from the military itself.

They are required to have sufficient experience in the services, and equally sufficient judicial skills.

This will lead only to the selection of people who are products of the culture that has attracted so much criticism.

The bottom line is the Government is not supportive of systematic reform, they are content to fiddle at the edges and see the continuation of the injustices the system has produced thus far.

Sandy Macdonald (NSW, National Party, Parliamentary Secretary to the Minister for Defence) Share this | Link to this | Hansard source

by leave—I take the opportunity to sum up and acknowledge the opposition’s general support for the Defence Legislation Amendment Bill 2006. I also acknowledge the contribution that the shadow minister, Senator Bishop, made to this debate and his interest in this very important area of reform.

As the Senate will recall, in October 2005, in his speech tabling the government’s response to the 2005 Senate report into the effectiveness of Australia’s military justice system by the Senate Foreign Affairs, Defence and Trade References Committee, a committee that I was on—and I think you were too, Mr Acting Deputy President Hutchins—the previous Minister for Defence, Senator Robert Hill, commented that the Australian Defence Force does a truly magnificent job in defending this nation and its interests. Those words were very prescient, of course, as the last couple of years have certainly shown, as they continue to do a truly magnificent job in protecting our interests both at home and abroad.

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 effective and as 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 by continuing its commitment to the objectives outlined by Senator Hill at that time. This bill is designed to make a significant enhancement to the military justice system which, in turn, will facilitate a confidence in that system among those that it serves. I would say that if further reforms are necessary as time goes by, they will certainly be considered by the government.

There were a number of questions that Senator Bishop raised that I will respond to in a general sense. The first question he raised was: how will the Australian Military Court ensure its impartiality and judicial independence? He made that general reference. The AMC will be a statutorily established service tribunal which will be independent of the chain of command to enhance its impartiality. The AMC will report to the parliament, not the chain of command. Military judges will be statutorily appointed by the Governor-General and will have security of tenure and remuneration set by the Commonwealth Remuneration Tribunal, further enhancing this independence from the chain of command. The court will be provided with appropriate administrative support, led by the statutorily appointed registrar, so that it can function independent of the chain of command. The military judges will also not be subject to the DFDA in performance of their judicial function. Specialist legal advice from the Australian Government Solicitor was obtained to confirm these arrangements. The AMC will give members of the ADF an impartial, independent court.

A second question that Senator Bishop raised was: will the creation of the AMC provide the ADF with a best practice military trial system? The answer to that is yes. The AMC will contribute to the military justice system’s aims of impartial, rigorous and fair outcomes through enhanced oversight, greater transparency and improved timeliness. The provisions for the AMC include a limited jurisdiction, statutorily appointed military judges, a military jury for certain offences and a statutorily appointed registrar. Offences will be prosecuted only through the office of a statutory DMP. An accused will have defence counsel in all cases, and this would be a legal officer, at no expense to the accused. Provision of defence counsel will be managed by the Director of Defence Counsel Services. In combination, these provisions are world’s best practice for a military court.

Senator Bishop also raised some questions about the CDF commissions of inquiry. I will pose the question: why are those personnel with civilian judicial experience able to preside over a CDF COI and not as a military judge on the AMC? The response is that the AMC and a CDF commission of inquiry serve different legal purposes. The AMC tries service offences and may impose a conviction and punishment under the Defence Force Discipline Act. A CDF commission of inquiry is a fact-finding administrative inquiry. The AMC is deployable and must be able to try service offences on overseas operations. Accordingly, it is necessary for a military judge to be a member of the ADF, who meets military standards for deployments.

A civilian with judicial experience who is a president of a CDF commission of inquiry conducts a fact-finding administrative inquiry. The procedures for a CDF commission of inquiry are set out in the Defence (Inquiry) Regulations 1985. This form of inquiry is similar to a general court of inquiry appointed by the minister, a combined court of inquiry appointed by the minister, and a board of inquiry appointed by the CDF and the secretary, the CDF or service chief or other delegated officers. These inquiries do not apportion blame, and there is no determination of criminal liability for an offence. A panel of suitably qualified civilians has been identified and is now available to participate in both the interim and final arrangements for the CDF COI. Other members of the BOI-COI may be either civilian or military and are selected on the basis of their expertise relative to the nature of the incident under inquiry.

Why are the provisions relating to the Chief of Defence Force commission of inquiry contained in the regulations and not in the act? The bill provides for amendments to section 124 of the Defence Act 1903 to create a CDF commission of inquiry, which will be presided over by a civilian with judicial experience. The detailed provisions relating to the procedures for a CDF commission of inquiry are being developed for inclusion in regulations. The Senate report provides no rationale for including the procedures for a CDF commission of inquiry in the act rather than in regulations.

The provisions relating to the appointment and procedures for a general court of inquiry by the Minister of Defence; a combined board of inquiry by the minister; a board of inquiry by the Secretary of Defence and the CDF, the CDF, the service chiefs or other designated persons; an investigating officer inquiry by the CDF, service chiefs and other commanders; and investigations by the Inspector General ADF are all set out in the Defence (Inquiry) Regulations 1985. Consistent with this arrangement, the essential provisions relating to a CDF commission of inquiry are being included in the regulations rather than in the act.

The placement of legislative provisions concerning the appointment and procedures for a CDF commission of inquiry in the regulations will ensure consistency with all other ADF inquiries legislation. Additionally, in order to clarify the role of coroners and the ADF, in the event of a service death, the ADF and state/territory coroners have been negotiating a form of understanding governing the relationship and operating procedures between the various parties concerning deaths of service personnel and coronial jurisdiction. It was agreed that each coroner would write separately to the CDF outlining the protocols to be observed between the two parties with regard to that particular coronial jurisdiction. To date both Victoria and Tasmania have provided such protocols. The remaining coroners are engaged with Defence with a view to agreeing on similar protocols.

Finally, do members of the ADF give up their rights as an Australian once they have joined the ADF? Clearly, no; Defence Force personnel are subject to the same laws and rights as apply to other Australians in addition to the Defence Force Discipline Act. However, the ADF applies a far greater level of additional regulation than that encountered in other forms of employment and demands behaviour which is consistent with its roles as an armed force. In that regard it is a unique employer.

Proscribed behaviour under the DFDA includes not only matters of a criminal nature applicable to the general community but a range of service disciplinary matters which constitute significant failings in the context of a disciplined armed force frequently serving overseas. While discipline is clearly fundamental to an effective military force, it must be tempered with a concern for individuals and their rights. Finding the balance between discipline and the rights of individuals is the key to achieving operational effectiveness and success.

The ADF has been praised for exemplary performance in operations. The military justice system, in providing the balance between discipline and individual rights, has underpinned the operational success of the ADF over recent years. An effective military justice system, as a core function of command, is necessary in addition to the civil code of justice.

I think that covers the points that I wish to take up as to Senator Bishop’s contribution. This is an important piece of legislation. It has been a long time coming. It was a pleasure—with you, Mr Acting Deputy President Hutchins, and other members of the Senate Foreign Affairs, Defence and Trade References Committee—to be part of the nurturing process of this particular piece of legislation. I know, Mr Acting Deputy President, that you took a particular interest in it. We heard some terrible stories, but in the scheme of things I think there was recognition by all of us involved in the inquiry that the ADF, for their part, did not approach it with the point of view of a lack of goodwill to finding a suitable solution and bringing the military justice system into the 21st century, which this legislation substantially does. A modern and professional ADF deserves a modern and effective system of military justice. With the reforms contained in this bill the government will provide a system that will better ensure impartial and fair outcomes and will strike a balance. The most important thing is to strike a balance between the need to ensure effective discipline within the Australian Defence Force and the need to protect individuals and their rights. I commend the bill to the Senate.

Mark Bishop (WA, Australian Labor Party, Shadow Minister for Defence Industry, Procurement and Personnel) Share this | Link to this | Hansard source

by leave—I wish to respond briefly to the remarks of the Parliamentary Secretary to the Minister for Defence. While I had not asked any questions, the parliamentary secretary correctly identified the half a dozen issues that the opposition had been pursuing at the committee level, in contributions this evening on the Defence Legislation Amendment Bill 2006 and, I suspect, in contributions on the bill in the other house the other month. I thank him and his advisers for having taken the trouble to prepare notes to put on the record some responses to those half a dozen issues of interest. I undertake to give consideration to those responses over the next few days.

Question agreed to.

Bill read a second time.