Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

I table a revised explanatory memorandum relating to the bill and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

This Bill comes to this House for the second time, having been introduced prior to the last election, but lapsing due to the dissolution of Parliament. It represents another stage in the reform of military justice in the ADF and one which is long overdue.

For the record, during the term of the previous Government there were no less than six reviews of military justice, including inquiries in 1999 and 2001 by the Joint Standing Committee on Foreign Affairs Defence and Trade of the Parliament.

These were preceded in 1997 with the report of Justice Abadee, which began in 1995 and an Ombudsman’s report in 1998. Following, there were reports by the WA Coroner into the fatal fire on HMAS Westralia, and by Mr Burchett QC.

Finally the catalyst for action came in May 2005, in tabling the Senate Foreign Affairs, Defence and Trade References Committee report on ‘The effectiveness of Australia’s military justice system’. The findings and recommendations of this report identified some serious shortcomings which are now being addressed.

Those recommendations essentially covered two themes. First the replacement of the old system of Court martial and Defence Force magistrate trials with a new Australian Military Court (retaining the existing right to appeal to the Defence Force Discipline Appeal Tribunal), an independent Director of Military Prosecutions and Provost Marshal ADF.

The second theme was that of major reform of the administrative system by which grievances are handled. The majority of these reforms are now in place and on the face of it appear to be operating satisfactorily, as regular 6 monthly reports to the Senate Committee indicate.

This Bill provides for the implementation of one of the final links in this new system, namely, the summary discipline system which is that part of the military justice system where many breaches of military discipline are first dealt with—as well as a number of related matters.

The previous Government’s response to the Senate Committee report was made in October 2005. Although not all recommendations were accepted, there was sufficient in the view of the Labor Party, then in opposition, to give support albeit conditional upon serious change being made and close monitoring of progress being undertaken.

In essence the difference in view was that the Senate Committee recommendations were for the ‘civilianisation’ of the military justice system so as to remove any risk of compromise which was seen to be endemic in the existing system. The then Government rejected those recommendations though it is clear that in so doing, the military was placed on notice that the system had to demonstrate dramatic improvement quickly.

The Rudd Government has maintained that attitude, and hence some revision to the provisions of the bill first introduced which reflects our attitude to the principles of military justice which previously we considered had been too readily dispensed with. The issue which best represents this attitudinal difference concerns an attempt by the previous Government to modify the rules of evidence applicable in summary trials.

The Senate Foreign Affairs, Defence and Trade Committee in its report on this bill in September last year expressed reservations about the provisions of the bill governing the application of the rules of evidence in proceedings before a summary authority. The Rudd Government does not believe that the previous government’s response to the Committee’s recommendation on that matter was sufficient and hence in this new Bill the provisions have been strengthened so that the rules of natural justice and basic principles of the rules of evidence (relating to relevance, reliability, weight and probative value) are applied by a summary authority.

Therefore, the Rudd Government has in this new Bill further strengthened the application of the rules of evidence.

The Rudd Labor Government is therefore committed to continuing the reform of the military discipline system to address the concerns of Defence personnel, the Parliament and the community.

The changes are intended to provide for, and balance, the maintenance of effective discipline and the protection of those individuals who are subject to the military discipline system. It introduces another element of military justice which reflects the fairness of civilian processes of justice, but in a way which recognises the realities of applying military discipline fairly and efficiently in the field.

This recognises that ADF operations are to some extent unique, requiring a far greater level of regulation than that encountered in other forms of employment and demands behaviour which is consistent with its role as an armed force. It follows that breaches of service discipline must be dealt with speedily and, sometimes, more severely than would be the case if an individual, who was not subject to military discipline, engaged in such conduct. The military discipline system needs to be one that can operate overseas and in Australia, in war and in peace.

At the same time, however, the Rudd Government in recognising the need for these additional constraints and standards, believes that the military discipline procedures that accompany them must be timely, impartial and fair to ADF members, and that they must be seen to be so by the Australian people.

In 2006, the first stage of significant reforms to the ADF discipline system was implemented through the establishment of a statutorily independent Australian Military Court under the Defence Legislation Amendment Act 2006. The court came into effect on 1 October 2007. The second stage of these reforms makes further significant improvements to the military justice system, in particular through the modernisation and redesign of the summary discipline system.

Commanders in the ADF carry great responsibility, which may ultimately require them to use lethal force. These Commanders are required to ensure that this lethal force is used lawfully. To do this requires a disciplined force. The cornerstone of ADF discipline is the Defence Force Discipline Act 1982 and, in particular, the summary discipline system subject of this bill.

The summary discipline system enables the timely maintenance of discipline and morale. The balance between discipline and the rights of individuals is the key to achieving the operational effectiveness and success that the nation expects of its armed forces. It is this balance that produces a Defence Force that can wield lethal force while reflecting the values of our nation and complying with our international obligations.

The ADF summary discipline system forms one part of the military justice system which, taken as a whole, must provide the safeguards necessary to protect the interests of ADF members. Commanders use the summary discipline system on a daily basis. It is integral to their ability to lead the people for whom they are responsible in order to ensure their welfare and safety. The summary discipline system must therefore operate quickly, be as simple as possible, and it must be capable of proper, fair and correct application by officers with no formal legal training.

It is upon this premise that the Australian military justice system is based and the amendments proposed in this bill have been drafted.

To ensure fairness and rigour, the bill will introduce a number of enhancements to the summary discipline system, including—

A right in all cases to appeal a summary authority conviction, order or punishment to a Military Judge of the Australian Military Court. The Bill provides that a statutorily independent Military Judge of the Australian Military Court will have the discretion to deal with an appeal on its merits by way of a fresh trial or a ‘paper review’ of the evidence.

If the Military Judge upholds an appeal against a conviction, then they may substitute a conviction for an alternative offence or quash the conviction, with the option to order a new trial

On an appeal against punishment or order, the Military Judge may confirm, quash or vary the punishment. In varying the punishment, the Military Judge is limited imposing a punishment not greater than the maximum punishment available to the summary authority at the original trial.

The Bill also introduces the right to elect trial by a Military Judge of the Australian Military Court for all but a limited number of disciplinary offences, similar to the scheme available in the Canadian Forces summary system. This means more minor offences have no such right for simple reasons of practicality. They are best dealt with quickly and are of such a nature that trial is inappropriate. The exception to this is for some officers where the right to trial has been long established. Dealing with these offences at the summary level will reinforce the maintenance of service discipline, while preserving the rights of individual members. Additional safeguards have been included for example, where no election is given, a more limited range of punishments is available. If a summary authority contemplates the imposition of a more severe punishment then, prior to making a finding of guilt, they must offer a right of election for trial by the Australian Military Court. In addition, a convicted person will be further protected by their right to appeal. The limits on the right of election are designed to ensure that the Australian Military Court is not unnecessarily burdened with charges involving minor disciplinary infractions, for example, straight-forward cases of absence without leave.

In the case of all summary proceedings and appeals from summary proceedings to the Australian Military Court which are dealt with on the papers, the bill will also introduce a revised evidence framework. However, as mentioned earlier, the Rudd Government has brought a different approach to the rules of evidence. While it is recognised that the rules of evidence and policy guidance currently applicable to summary proceedings are complex and varied, that they can be difficult for persons without formal legal training to apply in the field, their influence must be retained in the interests of fairness. Hence, unlike the provisions of the previous Bill, subparagraph 146A(2)(b)(ii) of this new Bill requires the summary authority to comply with the rules of natural justice and to apply fundamental evidentiary principles.

The Bill also proposes significant reforms to the review process for summary convictions. It provides a right of appeal to the Australian Military Court while retaining internal safeguards requiring more serious punishments (such as detention) to be approved before they take effect. There is a new obligation on reviewing authorities to recommend appeals to the Australian Military Court where substantive errors are identified. There is also a mechanism for correcting technical errors. When coupled with the new right of appeal to the Australian Military Court, the revised review process adds an additional layer of protection for the rights of individuals who are subject to the military discipline system.

A number of other significant improvements to the Military Justice system are included in the bill.

Following a review of offences and punishments in the Defence Force Discipline Act 1982, a number of proposed changes will be effected in the bill, including:

Reinforcing ADF anti-drug policies by enabling service tribunals to try offences in respect of a broader range of illegal drugs. Tribunals will have an expanded ability to deal with drug charges for offences committed both in and outside Australia by ADF and defence civilians as defined in the DFDA. The category of drug offences will be broadened, and because of the ADF’s no drug policy, the burden of proof will be strengthened, especially with respect to self administration of a prohibited drug or the administration of a prohibited drug by a person to a defence member, where there is lawful excuse for doing so;

Making it clear that a member is guilty of an offence of prejudicial conduct if he or she ‘omits’ to perform an act which proves likely to be prejudicial to ADF discipline. That is, in terms of modern military responsibilities, failure to act is as reprehensible as the wrongful commission of an act;

Reinforcing the high standard of weapons safety required in an armed force by making the offences of ‘negligent discharge of a weapon’ and ‘unauthorised discharge of a weapon’ alternative offences;

Improving the accuracy and fairness of sentencing by allowing the suspension in whole or part of a greater range of punishments, thus providing more flexibility and fairness commensurate with civilian practice;

Ensuring that Defence Force Discipline (Consequences of Punishment) Rules may apply to certain punishments regardless of whether the punishments are awarded by the Australian Military Court, a summary authority or a discipline officer;

Amending the status of a summary conviction so that it is of relevance for service purposes only. This will reduce the possible adverse and disproportionate impact of minor service offences on the civilian lives of persons convicted by an ADF summary authority; and

Providing better administration of members sentenced to dismissal by allowing the Australian Military Court to order that the punishment of dismissal is effective on a day no later than 30 days after it has been imposed (rather than immediately as is currently the case).

These changes will make an immediate contribution to the rigour, fairness and transparency of offences and punishments under the Defence Force Discipline Act.

This Bill makes a number of other changes as recommended by earlier reviews, but which have taken almost seven years to this stage. These include:

Expanding the Discipline Officer scheme under Part IXA of the Defence Force Discipline Act 1982 to include non commissioned officers, warrant officers and junior officers up to and including the ranks of lieutenant in the Navy, captain in the Army and flight lieutenant in the Air Force (with limited punishments); and

Removing the separate and more severe scale of punishments for Navy.

Additional proposals include—

Expanding the jurisdiction of superior summary authorities to include ranks up to rear admiral in the Navy, major general in the Army and air vice marshal in the Air Force. This change will allow simple and minor offences committed by more senior officers to be dealt with expeditiously at the summary level, rather than awaiting (the currently mandatory) trial by the Australian Military Court.

Adding the automatic disqualification of a summary authority to try offences where the summary authority has been involved in the investigation of the service offence, the issuing of a warrant, or preferring the charge. The change will help reduce any perceptions about the possible bias of summary authorities and promote confidence in the impartiality and fairness of summary proceedings.

Removing the examining officer scheme from the Defence Force Discipline Act. This change will remove an unnecessary and rarely used procedure.

Introducing a new time limit requiring the trial by a summary authority of a person charged, as soon as practicable within three months of the charge being laid. This will improve the timeliness of summary proceedings and mandate the referral of delayed matters to the Director of Military Prosecutions.

Clarifying the powers of the Director of Military Prosecutions in respect of a charge preferred by the Director of Military Prosecutions to make it clear that he or she has the full range of options that are required by the position.

Requiring a discipline officer to provide a report to his or her commanding officer. The intention of this amendment is to provide a safeguard through legislated oversight of the discipline officer scheme and provide statistical information to commanding officers. This will facilitate the maintenance of discipline and transparency of the discipline officer scheme.

Providing a right for a member to request no personal appearance, subject to approval, in respect of a summary proceeding. The personal appearance of the accused will remain the norm; however, in exceptional circumstances, and only where the accused intends to plead guilty, the member may apply not to be present at a summary proceeding and to have the matter heard in his or her absence, subject to the approval of the summary authority. The member will have the right to be represented at such a hearing.

Statutory recognition of the new Provost Marshal Australian Defence Force. In accordance with the Government response to the 2005 Senate Foreign Affairs, Defence and Trade Committee report, the Provost Marshal was appointed on 14 May 2006 to head the newly established ADF Investigative Service. It is intended to enable the Provost Marshal to refer a serious service offence to the Director of Military Prosecutions, where the Provost Marshal considers it appropriate to do so. Adoption of this provision will improve efficiency by streamlining military discipline procedures and allowing more serious matters to be referred directly to the Director of Military Prosecutions.

Strengthening the rights and duties of legal officers, in particular the exercise of their legal duties independently of command influence, by an amendment to the Defence Act. The purpose of this new section is to ensure that ADF legal officers are not subject to inappropriate command direction in the exercise of their professional capacity as ADF legal officers while still allowing an ADF legal officer who is superior in rank or appointment to issue technical directions to subordinate ADF legal officers.

To give effect to a recommendation by the Senate Standing Committee on Foreign Affairs, Defence and Trade, in its report of October 2006 (regarding an earlier military justice reform Bill now enacted), the Director of Military Prosecutions will be able to require that a trial of a class 3 offence is to be by a Military Judge alone, accompanied by a reduction in the maximum available punishment to six months imprisonment. This amendment reflects civilian criminal practice and overseas military systems. Similar to the previous system of a Defence Force magistrate trial, these offences do not warrant a jury trial (with the associated administrative issues, expense and possible delays). This will avoid unnecessary jury trials. This will be of significant benefit to the ADF, given their potential to impact adversely upon ADF operations.

Allowing for the Director of Military Prosecutions to be able to seek a determination from the Defence Force Discipline Appeal Tribunal on a point of law that arose in an Australian Military Court trial, at the conclusion of that trial. This will be for precedent purposes and will allow the law to be applied correctly in future cases.

These recommendations and initiatives, when implemented, aim to streamline and improve the ADF discipline system.

Marise Payne (NSW, Liberal Party, Shadow Parliamentary Secretary for Foreign Affairs) Share this | Link to 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.

Mark Bishop (WA, Australian Labor Party) Share this | Link to 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.

John Faulkner (NSW, Australian Labor Party, Cabinet Secretary) Share this | Link to this | Hansard source

I would like to thank speakers for their contribution to the debate on the Defence Legislation Amendment Bill 2008, a subject that I know has become something of a long-running saga in this place. Indeed, I want specifically to thank members of the Senate Standing Committee on Foreign Affairs, Defence and Trade, who have been very, very persistent in getting this reform underway. It speaks volumes for the committee, because it has been a long and drawn-out process. But not only that, I think it is fair to say that this committee has continued to demand accountability from the government of the day and be a serious watchdog in the public interest. I would also like to thank the committee for its objectivity in pursuing what is good public policy over the crude political pressure which so often defeats good reform like this.

Senator Payne, in her speech in the second reading debate, urged an early review of the reforms. I am advised that this is already underway, with Mr Justice Street having been engaged from June to December this year to undertake that role. I also accept that continuing review and oversight by the foreign affairs and defence committee would be sensible and I am quite sure that under Senator Bishop, as the new chair of that committee, it will give consideration to an appropriate role for the committee in that regard. Another issue that Senator Payne raised, in relation to consultation, is also a critically important one. I believe that consultation is one of those things that can probably always be done better. I take the point that is made about the Law Council’s views and I particularly note the controversy on rules of evidence. Again, I think points about consultation are well made.

I could say, and I think all senators in the chamber would agree, that at last we do have long overdue reform after as many as six independent reviews. We hope that the continuing public controversy over the years, which has seriously tarnished the reputation of our military, might now become a thing of the past. I would like to congratulate the Chief of the Defence Force, who has made this reform a personal goal. I think that should be said in this chamber as we finalise this legislation. That leadership has been absolutely critical and fundamental, and we sincerely hope that the current commitment to change continues both in behaviour and in attitude.

I thank those senators who have contributed to the debate on this bill. I thank all of those senators who have been intimately involved in the work of the foreign affairs and defence standing committee. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.